News & Politics

Neil Gorsuch: Originalism Is a 'Misleading Name.' Here's What He'd Use Instead

Judge Neil Gorsuch is sworn-in to testify before the Senate Judiciary Committee on March 21, 2017. (Rex Features via AP Images)

In an interview with Fox & Friends on Tuesday, Supreme Court Justice Neil Gorsuch made a powerful point about constitutional law by citing North Korea’s bill of rights. He noted that the Founders were divided on the need for a bill of rights, with James Madison insisting that the separation of powers would guarantee rights better than a Bill of rights.

“Madison originally thought we didn’t need a bill of rights. He wrote the Bill of Rights, but he thought that what would keep us free is the separation of powers,” Gorsuch said. “And if you look around the world today, I think he has a point. Every country in the world has a great bill of rights these days.”

“My favorite is North Korea’s,” he quipped. “Yes, North Korea. It promises everything we have, a right to free speech, a right to privacy, and — my personal favorite, especially this time of year — the right to relaxation. But the fact of the matter is that those rights aren’t worth the ink on the page, and they’re not because all power is accumulated in one man’s hands. What Madison knew is that people are not angels and that we need to separate powers to keep us free.”

Gorsuch had gone on the show to discuss his new book A Republic, If You Can Keep It. He insisted that few Americans appreciate just how vital the separation of powers is to the American constitutional system, and he also suggested that originalism is a misleading term for the judicial philosophy he shares with the late Justice Antonin Scalia.

“When it comes to the role of the judiciary, I believe the role is to be faithful to the original meaning of the Constitution. I tell my law clerks I have just two rules: Rule number one, don’t make things up. Rule number two, when everyone is yelling at you, begging you to do this or threatening you to do that, refer back to rule number one,” Gorsuch explained.

Most Americans support the idea of originalism, but the justice admitted it has a confusing name.

“I think originalism is badly understood and it’s kind of a misleading name. Folks who disagree with us sometimes call themselves living constitutionalists. Well, who wants a dead constitution? I don’t,” he said. “I want an enduring constitution.”

“The idea of originalism is just simply that judges should follow the original meaning of the words on the page, and neither add things that aren’t there nor take away things that are there,” Gorsuch added.

He gave a brief explanation by citing two notorious examples.

“The first time the Supreme Court of the United States really departed from the original meaning of the Constitution was perhaps in Dred Scott (Dred Scott v. Sandford) when the Court found a right for white persons to own black persons in the territories of the United States. Scour the document as long as you want, you will not find that right there. They made it up,” the justice insisted.

“Or take the Sixth Amendment, which gives you a right to confront your accusers in any case against you. For years, the Supreme Court of the United States said no, we’re not going to enforce that right, except when we think it’s really important,” Gorsuch added.

“Originalism says no to both of those things. A judge’s job is to be faithful to the Constitution at all times, nothing more, nothing less.”

Following the “living Constitution” model, Supreme Court justices have essentially created rights by reinterpreting the Constitution. In addition to Dred Scott, many cite Roe v. Wade (1973), the ruling that struck down state abortion laws because justices read a new right to abortion into the Fourteenth Amendment.

Rather than this kind of judicial supremacy, the Founders intended that if the American people thought the Constitution should support more rights, they should amend it themselves.

“They wrote down the rights that they thought were terribly important in the Bill of Rights. And they left it to us — we the people — to decide when to add to them, when to take them away. They didn’t leave it to nine older — I can say that now — judges in Washington to rule a country crossing a continent composed of three hundred million Americans,” Gorsuch insisted.

Just as Kim Jong-un holds all the power in North Korea, the Supreme Court has arguably usurped its power in the U.S. by brushing aside the Congress, the president, and the American people in making law — effectively amending the Constitution without any input from the other branches of government.

Some might counter that it is extremely hard to amend the Constitution. To those naysayers, Gorsuch pointed to the example of Gregory Watson, who spearheaded the movement to approve the 27th Amendment to the Constitution. “We the people can do this. We can govern ourselves,” Gorsuch insisted.

The Supreme Court justice also agreed with Antonin Scalia’s dictum that a judge should follow the law even when he personally disagrees with the conclusions he has to make in order to be faithful to the Constitution.

“The fact of the matter is any good judge will look back and say, ‘I may not agree with this policy, or I may not have voted for that law, but the people’s representatives chose to make that law and my duty as a judge when I put on that robe is to put aside my personal preferences and to faithfully discharge my duty which is to uphold those laws and apply them neutrally,'” he explained.

Gorsuch also recalled a statement from the late Supreme Court Justice Byron White, for whom Gorsuch clerked. Walking down a hall with portraits of justices, White asked his clerk how many of the justices he could name. Gorsuch told the truth, saying he could identify only about half.

He recalled White’s response: “And that’s the way it should be. We’re all forgotten soon enough.”

Gorsuch appreciated the lesson.

“He wasn’t telling me something sad or melancholy, he was telling me something great and important, that we’re all part of something a lot deeper, more meaningful than ourselves,” he said. “This wonderful republic really is a miracle in history.”

In order to preserve that miracle, Americans need to recognize the value of the Constitution and judges need to stop unilaterally altering the document. Just as North Korea’s bill of rights means nothing if one man has all the power, so the Constitution is severely weakened when justices decide to usurp the will of the people. That’s what originalism is all about.

Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.