In 2012, I asked Supreme Court Justice Antonin Scalia a question: Do you think the theory of “positive rights,” as promoted by President Obama’s legal adviser Cass Sunstein, will catch on in the judicial branch?
“I sure hope not,” he growled.
I thought of this while watching the nomination hearings for Scalia’s would-be successor, Judge Neil Gorsuch.
The Democrats on the Senate Judiciary Committee made it clear they believed the Bill of Rights — sometimes described as a charter of “negative rights”—is wholly insufficient to protect what they repeatedly called the “little guy.”
“I firmly believe that our American Constitution is a living document, intended to evolve as our country evolves,” said ranking Judiciary Committee member Sen. Dianne Feinstein [D-Calif.]. “So I am concerned when I hear that Judge Gorsuch is an originalist and strict constructionist.”
Cue the booing!
Faced with these attacks, Judge Gorsuch did not play along. Instead, he pledged to honor the letter of the law and respect precedent.
And so frustrated Democrats lamely attempted to “Bork” him.
“At the time of our founding, African-Americans were enslaved. It was not so long after women had been burned at the stake for witchcraft,” Feinstein said. “If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage.”
In her defense, the Constitution is silent on witches.
The Democrats’ line of questioning betrayed a willful misunderstanding of originalism. For starters, it takes into account not only the founders’ understanding of the Constitution, but also 230 years of amendments and precedents, among them those that abolished slavery.
Secondly, originalism does not just venerate the plain language of the Constitution. It rejects attempts to read into the document language that isn’t there —which, as it happens, would hurt the “little guy.”
“If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants,” Justice Scalia wrote. “This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority.”
Ah, but to liberals, this is a feature—not a bug.
Their focus on “positive rights” has its origin in—no surprise—the New Deal.
In 1944, President Franklin D. Roosevelt called for “a second Bill of Rights” to champion the interests of the citizen he called the “forgotten man.” These included the right to a job with good wages, “food and clothing and recreation,” and a “decent home.”
“This republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights,” he said. “As our nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.”
“To justify giving to one forgotten man, the [Roosevelt] administration found, it had to make a scapegoat of another,” wrote Amity Shlaes in her best-seller The Forgotten Man: A New History of the Great Depression. “Businessmen and businesses were the targets,” she explains.
They were targeted again at the Gorsuch hearing. It reached its nadir when Sen. Sheldon Whitehouse [D-R.I.] accused Gorsuch of helping “billionaires meddling secretly in our democracy” by using a legal decision, NAACP v. Alabama, meant to protect “families in the Jim Crow South whose homes and churches were being bombed, whose sons were being lynched by white mobs in essentially racist mass murders.”
“Let me give you a chance to clarify that you don’t see those two things as equivalent,” he added.
“Senator, I never said any such thing. And I wouldn’t, and I haven’t,” Gorsuch snapped.
Fortunately, the Colorado judge gave as good as he got. He pointed out that the politicians before him, busy bad-mouthing the Supreme Court’s Citizens United decision, still had the power to introduce more transparency and accountability into politics.
In this he channeled his predecessor.
“The notion that the advocates of the Living Constitution want to bring us flexibility and openness to change is a fraud and a delusion,” Scalia wrote. “All one needs for flexibility and change is a ballot box and a legislature.”
In a brilliant bit of legal jiu-jitsu, Gorsuch parried another attack by Feinstein, who accused him of weakening the so-called “Chevron deference.” This oft-abused precedent gives unelected bureaucrats great power and latitude in interpreting statutes.
Feinstein said Chevron was needed to slap new fuel economy regulations on automakers. Judge Gorsuch countered that the precedent was invoked by immigration officials to harm an actual “little guy,” an immigrant named Gutierrez who was denied promised entry to the United States.
“That reminded me of when Charlie Brown is going in to kick the ball, and Lucy picks it up at the last second,” said Gorsuch. “Can a man like Mr. Gutierrez, the least amongst us, be able to rely on judicial precedent on the books, or can he have the ball picked up as he’s going in for the kick?”
It was one of many times Gorsuch beat the Democrats at their own game. He spoke in fluent “liberal,” couching his rulings in compassion even as he grounded them in the Constitution.
Gorsuch noted the many little guys—and women—his court decisions aided, including polluted communities, pregnant police officers, and women harassed by a football team.
“The bottom line I think I’d like to convey to you, from the bottom of my heart, is that I’m a fair judge,” he said.
Judge Gorsuch brazenly reclaimed the banner of fairness from the Democrats. It was a welcome reminder that fairness is a conservative value, and used to be seen as such. For instance, President Ronald Reagan’s 1983 State of the Union Address used the term more than any since.
Reagan understood that Americans do not want government to pick winners and losers. But they do expect it to keep the playing field reasonably level—democracy guided by meritocracy.
Another former president agreed.
“There are no necessary evils in government,” Andrew Jackson said. “Its evils exist only in its abuses. If it would confine itself to equal protection and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing.”
Most Americans agree with Gorsuch that politicians should legislate and judges should judge. Yet once the hearings end, the battle for the soul of America will continue. Liberals will get back to work tarring President Trump’s budget as heartless. “Cuts to Meals on Wheels” has become the new “ketchup as a vegetable.”
But the judge’s stellar performance at his hearing showed once again why the little guy needs to be protected from government, not just by government.
And it proved that one Bill of Rights—the one we’ve got—is plenty.