Constitutional Questions With Justice Neil M. Gorsuch

the national constitution center presents constitutional questions with supreme court justice neil gorsuch why did the framers care about the separation of powers the framers came from a world in which all power was concentrated effectively in one set of hands and they knew that when power is in one set of hands it can corrupt absolute power corrupts absolutely and so they wanted to figure out a new way to share sovereignty and they believed that sovereignty didn't reside with a king it resided with the people that's why james wilson started the constitution which preamble with we the people are the sovereigns in this country and so they want to devise a system of powers that would divide up authority so that no one person could take away anyone else's liberties i think that was what was all about that's what the revolution was about so we could rule ourselves and not be ruled and subject to the whims of a tyrant what was the significance of making we the people sovereign well i think it means we take control of our own destiny and this is something that i'm really worried about when i talk to young people today i i've come to realize that only about a third of americans according to some polls and i believe it sadly can name the three branches of government and then a full another third of the country or so can't name a single branch of our government that worries me if we the people run this country we need to know how it works it also concerns me when i read that about 30 percent of americans today think it's important or essential to live in a democracy the framers set up a constitutional design so that we could control our own fate and not have it controlled for us by a king a tyrant and that was a great gift and it's one we can lose if we don't take care of it what did the framers do when they created the three branches of government so they took the awesome power of the government and they tried to divide it both vertically and horizontally so between states and the federal government on the one hand i know we're going to talk about that later but they also divided it between the branches of the government and and they came up with three branches is what they settled on the first branch the legislative branch is the power to make law and that that the framers knew was an awesome power the power to tell people how to live their lives so that power they took great care to break down and itself to check and balance that's why we have two houses of congress responsive to different constituencies elected at different times staggered and the president has to be involved you have to present not just bicameralism what we call call bicameralism two houses but presentment to the president it's an arduous process i know a lot of people complain today that congress doesn't produce more legislation madison would say perhaps that's partially by design so lawmaking was supposed to be a hard business where all of society would come together fight out and reach compromise that was a point of law making then he thought that when you come to the executive branch the people who enforce or administer the law the police officers the fbi uh that can't be run by a committee if if we can agree on the law then its enforcement should be efficient and you don't get efficiency in rule by committee so they vested those powers in the executive branch in a president and a single person well then they created a third branch of course the judiciary branch my branch to decide cases and controversies and there they assigned power to judges and they did so because it's a different kind of power not the power to make law not the power to enforce the law but the power to decide disputes about what the law means so you come to me with your case and you're not asking for new law you're asking for existing law and there you don't want a politician running that show you want a neutral decision maker somebody who you think will apply the law even-handedly to everyone that's why we have life tenure judges so for each of these branches they were assigned different responsibilities with different kinds of decision makers responsible for them why does it matter that each branch of the government has different responsibilities well i i think that's maybe often overlooked but let's just take an example lawmaking's supposed to happen in madison's constitution in the legislature where everybody can be heard not by judges and not by the executive branch what are the consequences if you take law making out of the legislature well instead of having everybody involved the whole of the people and their representatives you're going to have either one person who's electorally responsive to half the country he may not have won everyone's vote almost guaranteed he didn't he may have won 50 plus one what's he likely to do what kind of laws is he likely to create or if you take it over the judiciary there are nine of us nine lawyers nine old lawyers what kind of laws are we likely to create are we going to be representative of the people is that we the people in any meaningful sense of the word is that a democracy well you might like it in the short term if you like who happens to be on the court or who you happen to have as president today but what happens tomorrow that's what madison was worried about he knew not just to look at the short term but to look in the long term and he knew that over time you wouldn't want to rely on nine people to make the laws you wouldn't want to rely on one person to make the laws okay let's take a look at another level layer down what can you expect if you move lawmaking out of the legislative branch the legislative branch was designed so that minorities have enormous power you're going to need to compromise because of the bicameralism process and the varied elections and the varied electorates it gave minority rights an enormous veto power i have to peel off enough votes to get something passed it is going to be really hard it is going to be really slow you don't need to do that if you're the executives the whole point of the executive is to be efficient and fast right you're going to get a lot more law and it's going to be a lot less protective of minority rights so things like notice an assurance of due process you're going to be heard in advance minority rights are going to be out the window equal protection values are going to fall by the wayside so i think you could take just by way of proxy a little example i like to share today is how many laws do you think there are on the books and how many regulations by the executive branch are there there are three thousand or so federal statutes there are about three hundred thousand federal regulations so when you move lawmaking from the legislative to the executive branch you get a ton more of it and you don't always get a whole lot of notice as to what's coming a federal agency can make a new rule or a new law instantaneously without any advance notice congress lots of notice lots of process if it's done by the executive branch it's going to be done by the party in power no need to compromise no need to protect minority rights in the same way much the same thing happens if you leave lawmaking to judges it only requires five people to agree on a judicial decision in this country five people to rule 330 million americans that's not what the framers had in mind so those are some of the dangers if you move lawmaking out of the legislative and into the other branches conversely let's take what happens if you move judicial power into one of the political branches i think the dangers there are just as serious everybody is supposed to have the benefit of existing law in madison's design right people have decided we've reached social consensus on a hard question we're going to have it enforced evenly by everybody and judges will decide fairly what it means for each person but what if instead the meaning of existing law doesn't depend upon a neutral decision maker somebody who's protected from political accountability what if instead your decision maker is a member of the executive branch say someone who's answerable to the president what happened to your rights under existing law then are you sure you're going to get the benefit of the written law as it was written might you wind up getting a different set of rules based on your present popularity again what happens to equal protection of persons in those circumstances are you going to have fair notice if a judge can be removed by the president because he doesn't like the result if the president can overturn an executive agent's administrative judges ruling because they disagree with it as a matter of policy what's the point of the written law then is there such thing as written law then so those are some of the things that madison i think was worried about when he separated out the powers what is the rule of law when i think of what the rule of law is here's what i think it isn't caligula a roman emperor used to write the law in a hand so small and posted on a pillar so high that nobody could ever be sure what their responsibilities were yes there was published law there was written law and yes it was published it was out there and available so i think i think the rule of law depends upon stable laws that are knowable by the people that aren't so voluminous that it becomes a paper blizzard that they aren't impossible to understand and that treat people equally and provide them advance notice of what's expected of them so that they aren't caught after the fact unaware of what their responsibilities were what is due process of law due process of law means i think in short that you're going to be sure your point of view and your arguments will be heard no matter who you are it doesn't depend on how rich you are it doesn't matter what kind of person you are it doesn't matter whether you're a popular person your views happen to be in the ascendancy today you can come before a neutral magistrate and have your arguments under existing law heard do the president and judiciary have any power to make law given the separation of powers well i think madison thought they didn't i think he thought all law making if you look at article one section one all law make all legislative power here and granted is a sign of the congress i'm paraphrasing but he vested we call them the vesting clauses and each of each section the constitution vests the specific powers in different places the legislative power is vested in the congress no place else the executive power is vested in the president and the judicial power is vested in the supreme court and other courts that congress may create so those are three very i think madison had in mind distinct powers when he talked about those things those things meant something to him those three concepts are executive lawmaking and judicial lawmaking unconstitutional i think i think what madison thought was that the constitution as written made sense um and that it was inherent in the idea of divesting clauses madison also thought that the bill of rights wasn't necessary because he thought those interests would be protected by the separation of powers you don't need to assure specific liberties if you have a law making process that's going to respect minority rights that's what the bill of rights is all about is protecting your rights when you're not popular if you're popular who needs the bill of rights you win it's when you're unpopular and madison knew that in the long run they're going to be times when each of us may be in the ascendancy maybe in the minority and that's what the bill of rights is for but he also thought he really thought that if we got the design of the constitution right that those minority interests due process equal protection values would be respected for all persons and and in fact we we know we know this to be true though jeffrey don't we i mean there are a lot of excellent bills of rights around the world my favorite is north korea's north korea has it most excellent bill of rights you know and and some of your students will appreciate that it even guarantees you constitutionally protected right to relaxation i'm not kidding it's there and the inviolability of all persons well now how does that work out in north korea okay that constitution that bill of rights isn't worth the paper it's written on and it isn't because madison knew again that if you put all power in one set of hands you can write all sorts of nice promises about your rights but they don't mean anything the way we protect rights is by dispersing power carefully among the separate branches that's the genius of our constitution why did james madison think that a bill of rights might be unnecessary or dangerous why did he think that the separation of powers would guarantee that the constitution itself was a bill of rights well if you have a law making process for example in article 1 that gives minority interests a veto effectively over any new rule of law and that's what he thought it was going to be hard it was going to be difficult to pass law jefferson came back from paris after the constitution had been drafted everybody thinks jefferson drafted the constitution he wrote the declaration madison wrote the constitution jefferson was in paris now there's nothing wrong with being in paris paris is lovely right but he didn't write the constitution and he came back and apparently said to washington why did you come up with two houses of congress it'll be it's going to be really hard and slow and and and washington's reportedly said something to the effect it's like a saucer for sits tea and cools it cools the passions of the people it's the idea the senate the second house will cool your team all right the idea is that we're gonna have a process where people can deliberate it isn't gonna be rash it's it isn't going to be pure majoritarian will today's popular people rule the show no that was the idea and if you have a system of law making like that you have some assurance that minority rights will always be respected and then then if you have a court system where every person rich or poor popular or unpopular can come and have the law that's gone through this arduous process come to a neutral judge and say they're my rights not a political decision maker not somebody responsive to the president comes and goes all right but people who are there through thick and thin who answer to nobody except for the law then your rights mean something for all persons that's why the judicial oath is so important to a judge right you take an oath to enforce the constitution what does that mean that means that even when the constitution's unpopular and sometimes it is who wants to go through all these hard processes to make law it's it's a pain often people want to run rough shot over it but a judge's job is to enforce the constitution all the time even when it's unpopular and for all persons no matter how unpopular that person may be if you have that system that design madison thought that's the surest protection for your liberties no men are angels you told us right if men were angels they wouldn't need governments why did the framers care about federalism well i think in the first instance you know the first instinct in the confederation of course was states would maintain almost absolute power right the federal government meant very little then didn't work they knew they needed to do more so they ceded to the federal government for their powers but i think the the the framers also realized that the government the government's best is often the one that's closest to the people and they were quite jealous of their state prerogative still and so the federal government is a government of enumerated powers again if you go back to article one all legislative power here and granted that there follows a list and those are the powers granted to the federal government to make laws in that's it that's it it's limited government the rest as you know the ninth and the tenth amendments send everything else back to the people and to the states because as wilson reminds us the people are ultimately the sovereigns in this system the federal government isn't king isn't the sovereign the state government isn't sovereign the people are the sovereign and they've given certain of their powers to the federal government they've given others to the states and what has given them neither remains with the people why is the 10th amendment important well the tenth amendment is as you know what isn't enumerated in the constitution for the federal government belongs to the states to regulate and that's much of our daily life um in the federal court system for instance there are about 300 000 cases that are decided in the federal court system every year about 70 in my court that's it there may be a hundred million cases filed in state courts every year right that's where most government happens um that's where most law is made and the framers recognize that the virtue of having different states they conform laboratories of experiment right different ideas different concepts of how to rule ourselves and live our lives might be tried in the states and that some of the best ideas would then percolate up to the federal system and be adopted by others um if you try one size fits all and as you have in any market you lose choice you lose self you lose control and you don't have an opportunity to experiment and find the best answer they didn't believe in a command and control they believed in a people up some sort of government experimental and and and run by and for the people is federalism a nonpartisan concept that's i think oh it's absolutely nonpartisan um one wants the federal government to solve all the problems when one controls the federal government one doesn't want the federal government to control anything uh when when one's out of power and what madison again reminds us is those are short-term ways of thinking the long-term way of thinking is again act rationally not passionately act for the long term not for today and realize that nobody none of us we're all human right none of us has the answers the best way uh for us to to move forward into progress is through the marketplace of ideas and that's what federalism is could america have a law by a single national referendum or is that not ruled by we the people well that it's not provided for by the constitution except for in the following sense in a very important sense we can amend our constitution people forget about that but for most of our history we had an amendment every seven or ten years and that can be done by convention as well as through legislative processes and if people think sometimes it can't happen well the last one happened in 1992 and it james madison had role there too but so did a young person in college as you know i'm sure you know this story it's great story right a young person wrote a paper about an amendment that madison had drafted but they didn't didn't go anywhere back at the founding it had to do with salaries for congress persons and whether they could be raised in the same term that congress is serving or whether they could only take effect in the future for the next congress and this young person thought that was a great amendment and it had been ratified by a number of states but not quite enough to become a part of the constitution and then about in 1992 this young person picked it up wrote a paper i think got a poor grade for the paper but managed to start a movement to get this madisonian amendment 200 years later adopted and it is the most recent amendment to the united states constitution so there you go we the people can through that kind of process still have that kind of referendum activity and a young person can do those sorts of things what is the difference between a direct democracy and a representative republic well we are a republic um in in an ordinary sense of that word meaning that it isn't direct democracy it's not an athenian democracy where every citizen has a vote on every piece of every law that is made we elect representatives who make law for us and that was another madisonian effort to promote reason over passion that was the thought you can throw your representatives in and out but you're entrusting him or her for a period of time the judgment to make law for you james madison wanted a republic small enough so that representatives would know their constituents yes yeah exactly right he he wanted you to be in touch with your constituencies house of representatives still very much that way right uh and and yet large enough that uh you could step back and be separate from the people look at the senate for example right you represent a whole state um often uh they're a little more distant from their constituents than those of representatives by design it's a it's an accommodation of both interests what was james madison's contribution to the separation of powers i think we've covered madison but you know to me you know i have i have two uh two fireplaces in my chambers and over one of them is madison and for someone who's concerned about the constitution and takes an oath to defend it i think madison was you know pure genius uh this this country was very fortunate to have framers who had studied so much history and who had lived through a period of time when they were subject to despotism and they knew what that looked like and he came up with a constitution and a separation of powers he divided sovereignty he split the atom of sovereignty as justice kennedy likes to say in a novel way that has been imitated all around the world for the last 200 years it was genius and then over the other fireplace in my office i have a portrait of john marshall harla who for me is if madison's the father of the constitution harlan's the father of the reconstruction amendments because part of part of our design is we the people control our constitution and after the civil war we changed the nature of our constitution a fair amount and if after the revolution we realized that the articles of confederation were an imperfect solution after the civil war we realized that the constitution itself needed serious attention and the reconstruction amendments changed again the nature of federal state relationships and the dignity of persons and harlan was not a perfect person he was a former slave holder from kentucky but he recognized that the original meaning of the equal protection clause means that all persons are equal and that segregation is not equal and he was the only person on this court who recognized that at the time and it wasn't popular for him probably back home in kentucky to say so but he took an oath to affirm and uphold the constitution and that's what he did i think in its original meaning as written so those are why i have those two men over my fireplaces in my office tell us about chief justice tani and dred scott dred scott was a decision where the supreme court asserted that congress had no power to regulate slavery in the territories no provision of the constitution says anything of the kind that was law making by judges that was usurping the power of congress by nine members of this court and it was done some say with a good intention some say the court wanted to avoid the civil war and thought that this was a way to compromise to avoid the civil war that did not work out and it was a dark stain on this court's history and tradition taking over the law-making power from congress defying the constitution treating persons unequally and the result was contributing to a great civil war so to me dred scott is a cautionary tale in what happens when judges exceed their power and engage in law making rather than applying the law as written the reconstruction amendments overturn dred scott how did they change federal state relations they gave a lot more power to congress this is another example of where the original constitution anticipates the people being in control and adjusting the level of responsibility between states and federal government and so while the 10th amendment reserves a lot of power to the states the 13th the 14th to 15th amendments move some of that power back to the federal government authorizing congress to ensure civil rights for all persons and to make that promise of equality that we find in the 14th amendment real in our lives and the civil rights act of 1964 is a wonderful example of congress exercising that power to try and make those rights real is it important that the reconstruction amendments also apply the bill of rights to the states that's another wonderful example thank you that's another that's a wonderful example right the 14th amendment moves the balance of power the federal government in another way um when we talk about the privileges and immunities of citizens in the 14th amendment or the due process clause one can find it either place what does that mean one thing this court has come to realize over a number of years in a number of cases is that the privileges and immunities that belong to you and me as an american citizen or what it means to have due process of law a lot of that can be found in the bill of rights in those first 10 amendments and so this court has done what we call incorporation incorporating those rights as against the states through the 14th amendment and that's a big transfer of authority right that's a big limitation on state power that didn't previously exist so that now your first amendment right to speak or your fourth amendment right to be protected in your home against unlawful searches and seizures doesn't just run as against the federal government it also runs against the state government what are checks and balances well i think what we've talked about are the checks include some of the checks and balances so while power is dispersed in those ways look there are also ways in which each of those branches have some control over the other right they're independent powers legislative executive judicial but the president has some role in the legislative process laws have to be presented to the president for his approval or veto right and judiciary we're appointed by the president with the advice and consent of the senate we don't just appear from out of nowhere right those are some examples of things that we do that check and balance one another the legislative branch and the executive branch their interpretations of the law ultimately show up in in forms of cases and controversies the judges decide upon these are all other ways in which madison made sure that the divided powers are checked and balanced what is the purpose of checks and balances well i wouldn't say blended i would say checked and balanced i don't get to exercise the legislative power ever under madison's design but the legislative power as exercised i do get to decide whether that's consistent with the constitution as a judge in a case that you may bring or anyone may bring because the legislative power is always responsive and limited to by the constitution what's the purpose of that it's the same purpose as the separation of powers i think and that's to make sure that nobody has too much control over your life that every one of your rights is subject to careful thoughtful dispassionate review and protection alexander hamilton said when judges strike down laws it doesn't thwart popular sovereignty it serves it how does that work and what was his argument well i think his argument's what we're talking about a minute ago right sometimes the constitution's pretty unpopular i think no one would say the constitution's protection of all persons was very popular in the south during segregation but that didn't make the constitution any less important or real or vital and if elected officials weren't going to enforce it judges had to and so to me that's that's what we're talking about there um that sometimes to protect popular will as embodied in the constitution judges have to act against majoritarian interests the constitution is we the people it's the supreme law it is what all else has to answer to and sometimes it won't be popular and that's why you depend upon independent judges who don't have to answer to the majoritarian will don't have to be popular they can do the unpopular thing i think that's what hamilton was getting at why is it that the constitution represents popular will more effectively than an ordinary law ah because we adopted it it's it was adopted by popular will right i mean it had to be approved and ratified just as all the constitutional amendments must this was and is the law of the people it was an expression by the people of the law and only they get to change it not me not you not the executive and not the legislative branch and sometimes things go in and out of fashion presidents want to bend the legislative process and ignore it sometimes it happens legislators don't want to have to go through bicameralism and present they may want to hand off lawmaking responsibilities elsewhere divest themselves of their legislative authority judges exist to make sure that the mechanisms approved by the people are always abided that's our job what is the constitution the constitution is again a long long-term long-run document and it recognizes that in the short run majorities will sometimes want to veer away from it they may not find equal protection popular today they may not find other rights free speech rights popular tomorrow they may not find freedom of religion particularly attractive the next day and they may want to impinge upon those fundamental rights well those rights were approved by the people in the constitution and you have an opportunity to come to an independent judge and say yes the short run the short-sighted lawmakers or executive of today may want something but the constitution that the people approved and that is the supreme law says otherwise and a judge exists and has to have the fortitude to be able to say yes you're right the constitution does provide equal protection free speech freedom of religion and you win you win even though you're deeply unpopular today um and and that's the long-run view that madison had of the constitution and the judge's role in it what kind of fortitude does it take for a judge to ignore popular passions in the short term in order to enforce long-term constitutional values well it's a i i think there are two [Music] two virtues that i think um are acquired and that i've had a lot of wonderful examples of in my life one is an indifference to popular will and a willingness to to follow the constitution and the law just wherever it leads which which is going to mean that that you're going to wind up doing things that you may like or dislike but you think the law compels and the other is the humility sometimes to realize you could be wrong too and nobody's perfect and to listen to your colleagues and listen to the arguments of both sides respectfully so you have to you have to be independent and strong but there's also a humility and softness softness that's required i think with it too justice white exemplified those things for me why is intellectual humility important for judging we go back to dred scott if you think you can solve all of society's pro five people think they can solve society's problems just by tinkering with the constitution a little bit rewriting it making it a little bit better the way you want it no nobody hired you to be god nobody hired you to be a philosopher king they hired you to enforce the constitution that's it that's enough that's quite a lot um but but to think you can do more than that i i think is sailing pretty close to the sun why is it important to keep the separation of powers i'm really concerned that young people today don't know the three branches of government let alone know why they're important and the fact of the matter is if we allow separated powers to become combined if all power winds up in one set of hands the president stands a judge's hands the legislature stands power's going to corrupt absolutely that's the one lesson of history that madison knew and that you just could not concentrate power like that and that different functions require different kinds of decision makers to make things fair and to cool passions and we needed to separate law making from the executive function and the judicial function to ensure that people will be treated equally and have notice of the laws and demands of them

Channel: National Constitution Center

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Id: rU6TLg_dHdU

Length: 37min 50sec (2270 seconds)

Published: Wed Feb 24 2021