Neil Gorsuch and a Truly Original(ist) Take on Modern America
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A lot will be made in the coming days about U.S. Supreme Court nominee Neil Gorsuch’s “originalist” views of the Constitution, meaning that he tries to interpret it in a manner consistent with the original intent of its authors. But how might channeling the intentions and perspectives of America’s 18th-century founders impact the judge’s views on his own life and current affairs?
In the following exchange, OZY imagines how Gorsuch’s philosophy might be probed during his upcoming confirmation hearing before the U.S. Senate’s Judiciary Committee.
Opening Statement from the Nominee, the Honorable Neil Gorsuch
Thank you, Mr. Chairman, and members of the committee. As the late Justice Antonin Scalia liked to say, judges should strive to apply the law as it is, focusing backward, not forward, and looking to the text, history and original intent behind Constitutional provisions to determine what the founders of our country intended. I agree that we should not decide cases based on our own beliefs about what is best for people living 230 years later.
“The Constitution that I interpret and apply is not living but dead,” Justice Scalia once wrote, and that perfectly encapsulates what some might call my own “originalist” views. If a judge wants to apply the Constitution, then he must first pry it from the cold, dead hands of the men who wrote it and ask, what would a wealthy white colonialist do — or “WWWWCD?” — as the placard on my own desk reads. This applies to everything from gun rights to cybersecurity.
I live my life as I interpret the law …
Finally, I would like to thank my wife, Louise, for partnering with me to perform our procreative duties, build alliances between our two families and produce two lovely daughters to keep our horses, chickens and goats in accordance with the highest and best traditions of marriage in this country. I look forward to your questions.
Sen. Patrick J. Leahy (D-Vt.)
Thank you for being here, Judge Gorsuch. Before I begin, did you just thank your wife for performing her “procreative duties”?
Yes. The purpose of our matrimony may be the production of heirs, but it’s been a quite profitable arrangement for us as well. As John Adams once wrote to Thomas Jefferson, “As long as Marriage exists, Knowledge, Property and Influence will accumulate in Families.” And we are thankful to count among our blessings a 3,600-square-foot home in a gated Colorado subdivision with sweeping mountain views.
So you take your cues on marriage and family life from John Adams?
I live my life as I interpret the law, which, as I said, means looking backward, not forward, in consideration of the original intent behind the activity, and not what might personally be best for me or my family.
Sen. Dianne Feinstein (D-Calif.)
If I may, does that mean you look backward in every aspect of your life? I assume you use modern medicine and hospitals when you are sick, right?
Our founders were very much aware that the medicine of their day was inadequate. Jefferson himself believed that doctors did “more harm than good” and preferred a more holistic approach. I am no different. For stomach problems, like Jefferson, I use thyme and lavender. For aches and pains, I apply cabbage leaves, just like Abigail Adams.
I am troubled by your response, but it does raise an important question about the framers of our Constitution. Could they even have comprehended a world of smartphones, internet and air travel?
I think they would be quite puzzled. I know I am whenever my clerks pull out their laptop computers and tablets in front of me. But then I just focus and think, “What would a reasonable person in the 18th century do if they encountered this device?” And the answer is usually quite clear: a serving tray.
Chairman, Sen. Chuck Grassley (R-Iowa)
Judge, I’d like to get this hearing back on track with a few rapid-fire softball questions.
Does it bother you that our 45th president may have avoided paying any federal income taxes for almost two decades?
Despite all the hoopla about “no taxation without representation,” the colonists rarely paid any of the taxes they were so upset about Great Britain levying. That made them smart.
#OscarsSoWhite has been a big deal in the past. While the Academy is making strides this year, does it bother you that African-American performers have been underrepresented among Oscar nominees?
Again, to quote Jefferson on the different expressive quality of white and Black faces: Are not “the expressions of every passion by greater or less suffusions of color in the one [whites], preferable to that eternal monotony … that immovable veil of black, which covers all the emotions of the other race?” In short, it would not surprise me at all if their acting skills were impaired.
Sen. Al Franken (D-Minn.)
If I may interject just one question before we break for lunch. Judge Gorsuch, as a former comedian, I am intrigued by the “Fascism Forever Club” you started while in prep school, which, according to the school yearbook, “happily jerked its knees against the increasingly ‘left-wing’ tendencies of the faculty.” Do you find fascism funny?
It was a bunch of rebellious right-wing kids. It was meant to be funny — like that old Virginian joke: “A man asked a lady which way to her bedchambers.”
[Trying to restrain his own laughter] “She replied: Through the church, sir.”
But you do see how someone could get the wrong impression about “Fascism Forever” today?
Well, that’s not what I originally intended.