Judge Gorsuch Is A Mainstream Constitutionalist

“Mainstream”. We are having a country-wide civics lesson on who is or is not out of our mainstream: Senate Democrats or the Supreme Court nominee Judge Neil Gorsuch.

Minority Leader Chuck Schumer said he’ll fight “tooth and nail” against any Supreme Court nominee who’s outside the mainstream, and many of his Democratic colleagues have said that means a filibuster, which will require 60 votes to end in the 52-48 Senate. Tuesday night President Trump nominated Judge Gorsuch to fill Scalia’s seat on the high court. We’ll now see who is in the mainstream – this Tenth Circuit judge, a distinguished scholar who’s a graduate of Columbia University, Harvard Law and Oxford University (doctorate in legal philosophy) or Schumer and Senate Democrats, if they refuse to give Trump’s nominee an up-or-down vote.

I like Gorsuch’s chances, given his well-established views on the rule of law in general and religious liberty in particular.

It’s an important question for the American people. One out of five voters said the Supreme Court was “the single most important reason” for them in the November elections, according to exit polls. They wanted a voice in the future direction of the high court. Trump has obliged by naming a fair and open-minded jurist whose opinions are often embraced, if not cited, by the Supreme Court.

Are Gorsuch’s views the proper approach to judging mainstream? If they’re not, the American public is probably going to wonder why not. Consider the words in his memorial tribute to Scalia:

“[J]udges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Are Schumer and Senate Democrats ready to tell the public that asking Supreme Court justices not to act as legislators in black robes but pay heed to the actual text of our laws and Constitution is somehow beyond the pale?

The rule of law, not the rule of judges, is a theme Gorsuch has returned to often in his work. “Ours is the job of interpreting the Constitution,” he wrote in a concurrent opinion. “And that document isn’t some inkblot … but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch is just as principled and tenacious when it comes to protecting those rights actually enshrined in the text of our Constitution and laws. Which brings me to his sterling record on religious liberty. He joined a stirring dissent when the Denver-based appeals court let stand the Obamacare mandate for religious institutions in the Little Sisters of the Poor case. (“When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”)

The Supreme Court ultimately agreed with Gorsuch and the Tenth Circuit dissenters in Little Sisters.

A major religious liberty case found Gorsuch with the Tenth Circuit majority – and the Supreme Court ruling later in agreement. In Hobby Lobby, Inc. v Sebelius, the 10th Circuit majority ruled that such corporations were “persons” who could claim protection under the Religious Freedom Restoration Act. In a separate concurring opinion he wrote: “[The Obamacare] mandate infringes the [owners’] religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.”

It’s hard to believe that Americans are going to find Gorsuch’s religious liberty jurisprudence – or many other legal issues, for that matter – outside anyone’s mainstream. The Supreme Court did not.

What they may find outside the mainstream is a Senate Democratic caucus acting through a filibuster to prolong the current gridlock on the Supreme Court. What they may find outside the mainstream is denying a nominee known for fairness and open-minded, independence and collegiality, a simple up-or-down vote.

"Are Gorsuch’s views the proper approach to judging mainstream? If they’re not, the American public is probably going to wonder why not. Consider the words in his memorial tribute to Scalia: “'[J]udges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.'”

"Power always thinks it has a great soul, and vast views, beyond the comprehension of the weak; and that it is doing God service, when it is violating all His laws. - John Adams letter to Thomas Jefferson, Feb. 2, 1816

The semantics of "Progressivss" define the Constitution's limitations on their power differently than did the Founders and Framers of America's Constitution, which, by its own provisions, limited government and the coercive power which future elected individuals might wish to wield.

From Page xv of "Our Ageless Constitution," here are excerpted words from President Andrew Jackson's Proclamation of December 10, 1832:

"We have received it [the Constitution] as the work of the assembled wisdom of the nation. We have trusted to it as to the sheet anchor of our safety in the stormy times of conflict with a foreign or domestic foe. We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here and our hopes of happiness hereafter in its defense and support. Were we mistaken, my countrymen, in attaching this importance to the Constitution . . .? No. We were not mistaken. The letter of this great instrument is free from this radical fault. . . . No, we did not err! . . . The sages . . . have given us a practical and, as they hoped, a permanent* Constitutional compact. . . . The Constitution is still the object of our reverence, the bond of our Union, our defense in danger, the source of our prosperity in peace: it shall descend, as we have received it, uncorrupted by sophistical construction, to our posterity. . . ."

*Underlining added for emphasis

And, it was Thomas Jefferson who used another metaphor with reference to the Constitution when he asserted that "the People" must "bind them (government) by the chains of the Constitution." In another instance, he declared: "It was intended to lace them up straitly within the enumerated powers. . . ."

The only path to making America "great again" begins and ends with understanding of, and adherence to, the ideas and principles underlying the Constitution of the United States of America, as they were explained in the 85 essays of THE FEDERALIST, newspaper essays addressed directly to "the People" in the States prior to their ratification of that Constitution by the people in the states.

-------------------------

"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

— Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." Thomas Jefferson to W, Nicholas, 1803.

In his own 1801 Inaugural Address, after listing what he called the "essential principles" to guide his Administration, Jefferson added:

"These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety." - Thomas Jefferson, First Inaugural, 1801

We might contrast Jefferson's understanding with today's Democrat Party "progressive" policies which, in effect, would undo all the monumental work accomplished by the Founders on behalf of liberty, turn their ideas of liberty upside down, and leave the law afloat and without anchor, relying, as of old, on mere men and women.

Perhaps American citizens need to review Justice Story's Commentaries on the Constitution. . . .?

Commentaries on the Constitution of the United States (1833) - by Joseph L. Story - BOOK 3, CHAPTER 45 - Concluding Remarks

Sec. 1903. We have now reviewed all the provisions of the original constitution of the United States, and all the amendments, which have been incorporated into it. And, here, the task originally proposed in these Commentaries is brought to a close. Many reflections naturally crowd upon the mind at such a moment; many grateful recollections of the past; and many anxious thoughts of the future. The past is secure. It is unalterable. The seal of eternity is upon it. The wisdom, which it has displayed, and the blessings, which it has bestowed, cannot be obscured; neither can they be debased by human folly, or human infirmity. The future is that, which may well awaken the most earnest solicitude, both for the virtue and the permanence of our republic. The fate of other republics, their rise, their progress, their decline, and their fall, are written but too legibly on the pages of history, if indeed they were not continually before us in the startling fragments of their ruins. They have perished; and perished by their own hands. Prosperity has enervated them, corruption has debased them, and a venal populace has consummated their destruction. Alternately the prey of military chieftains at home, and of ambitious invaders from abroad, they have been sometimes cheated out of their liberties by servile demagogues; sometimes betrayed into a surrender of them by false patriots; and sometimes they have willingly sold them for a price to the despot, who has bidden highest for his victims. They have disregarded the warning voice of their best statesmen; and have persecuted, and driven from office their truest friends. They have listened to the fawning sycophant, and the base calumniator of the wise and the good. They have reverenced power more in its high abuses and summary movements, than in its calm and constitutional energy, when it dispensed blessings with an unseen, but liberal hand. They have surrendered to faction, what belonged to the country. Patronage and party, the triumph of a leader, and the discontents of a day, have outweighed all solid principles and institutions of government. Such are the melancholy lessons of the past history of republics down to our own.
Sec. 1904. It is not my design to detain the reader by any elaborate reflections addressed to his judgment, either by way of admonition or of encouragement. But it may not be wholly without use to glance at one or two considerations, upon which our meditations cannot be too frequently indulged.
Sec. 1905. In the first place, it cannot escape our notice, how exceedingly difficult it is to settle the foundations of any government upon principles, which do not admit of controversy or question. The, very elements, out of which it is to be built, are susceptible of infinite modifications; and theory too often deludes us by the attractive simplicity of its plans, and imagination by the visionary perfection of its speculations. In theory, a government may promise the most perfect harmony of operations in all its various combinations. In practice, the whole machinery may be perpetually retarded, or thrown out of order by accidental maladjustments. In theory, a government may seem deficient in unity of design and symmetry of parts; and yet, in practice, it may work with astonishing accuracy and force for the general welfare. Whatever, then, has been found to work well in experience, should be rarely hazarded upon conjectural improvements. Time, and long and steady operation are indispensable to the perfection of all social institutions. To be of any value they must become cemented with the habits, the feelings, and the pursuits of the people. Every change discomposes for a while the whole arrangements of the system. What is safe is not always expedient; what is new is often pregnant with unforeseen evils, and imaginary good.
Sec. 1906. In the next place, the slightest attention to the history of the national constitution must satisfy every reflecting mind, how many difficulties attended its formation and adoption, from real or imaginary differences of interests, sectional feelings, and local institutions. It is an attempt to create a national sovereignty, and yet to preserve the state sovereignties; though it is impossible to assign definite boundaries in every case to the powers of each. The influence of the disturbing causes, which, more than once in the convention, were on the point of breaking up the Union, have since immeasurably increased in concentration and vigour. The very inequalities of a government, confessedly founded in a compromise, were then felt with a strong sensibility; and every new source of discontent, whether accidental or permanent, has since added increased activity to the painful sense of these inequalities. The North cannot but perceive, that it has yielded to the South a superiority of representatives, already amounting to twenty-five, beyond its due proportion; and the South imagines, that, with all this preponderance in representation, the other parts of the Union enjoy a more perfect protection of their interests, than her own. The West feels her growing power and weight in the Union; and the Atlantic states begin to learn, that the sceptre must one day depart from them. If, under these circumstances, the Union should once be broken up, it is impossible, that a new constitution should ever be formed, embracing the whole Territory. We shall be divided into several nations or confederacies, rivals in power and interest, too proud to brook injury, and too close to make retaliation distant or ineffectual. Our very animosities will, like those of all other kindred nations, become more deadly, because our lineage, laws, and language are the same. Let the history of the Grecian and Italian republics warn us of our dangers. The national constitution is our last, and our only security. United we stand; divided we fall.
Sec. 1907. If these Commentaries shall but inspire in the rising generation a more ardent love of their country, an unquenchable thirst for liberty, and a profound reverence for the constitution and the Union, then they will have accomplished all, that their author ought to desire. Let the American youth never forget, that they possess a noble inheritance, bought by the toils, and sufferings, and blood of their ancestors; and capable, if wisely improved, and faithfully guarded, of transmitting to their latest posterity all the substantial blessings of fife, the peaceful enjoyment of liberty, property, religion, and independence. The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them."

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.