Here are some quotes from Gorsuch’s book:
- Originalism teaches only that the Constitution’s original meaning is fixed.
- Living constitutionalists often complain we can’t know the original understanding because the document’s too old and cryptic. Hardly. We figure out the original meaning of old and difficult texts all the time. Just ask any English professor who teaches Shakespeare or Beowulf.
- I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law.
- The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process.
- And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them.
- You could even say the real complaint here is with our democracy.
- Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written.
The Wall Street Journal’s Kyle Peterson reviews the book, writing:
Justice Neil Gorsuch has two rules for his law clerks. “Rule No. 1: Don’t make stuff up,” he tells them. “Rule No. 2: When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.”
He is sitting in a wood-and-leather chair in his Supreme Court chambers. He’s discussing originalism, the idea that the Constitution’s meaning is the same in 2019 as in 1788. “Our Founders deliberately chose a written constitution,” he says. “Its writtenness was important to them. They rejected the English tradition of an unwritten constitution, because they wanted to fix certain things.”
To treat the Constitution as a “living” document, he says, is to regard it “more or less as a relic,” something kept “in the back of the church behind a screen, and you look at it as you walk by, and you move on.” But that’s “not what ‘We the People’ agreed to,” he adds. “We didn’t say five judges—or nine, or whatever—sitting in Washington get to govern 330 million people. Who would write such a thing down? Who would agree to that? That’s not a republic. I don’t know what that is, but it’s not a republic. Not a democracy.”
In his new book, “A Republic, if You Can Keep It”—a mix of speeches, reflections and excerpts from his judicial opinions, to be published Sept. 10—Justice Gorsuch makes the case, he says, that “we should all be originalists.” Consider the alternative: “What happens when judges make it up?” he asks. “Strange things happen. You start losing rights, first of all, that are in the Constitution.”
He cites the Fourth Amendment’s ban on “unreasonable” searches. “At common law that pretty much meant, hey, you can’t go snooping around someone’s house—or the curtilage, the area around their house—without a warrant,” he says. Then, incredulous, he cites Florida v. Riley (1989), in which the justices “held that the police may, in a helicopter 400 feet above your house, hover and peer down without a warrant. They said that’s not even a search.”
Read more here.
