America in 2020 does not look like the America we were taught about in school. Of course the values we are taught are aspirational in nature and our country is an ongoing project of moving closer to those ideals. America has yet to live up to its founding principles but moving closer brings us closer to a more perfect union. Moving away from those ideas will doom societies to despotism and despair. That is what makes Justice Neil Gorsuch’s latest book, A Republic if You Can Keep It, so important. It is a book filled with tremendous legal knowledge, moving speeches, a stalwart defense of Originalism, and eternal wisdom regarding good government. Although it was published in 2019 to educate the general public, it could have just as easily been published in 2020 as a guide for a country that has lost its way.
America is a republic if you can keep it
Americans and now the rest of the free world live under a very special form of government. One that was built to preserve a system of self-governance and most importantly, individual liberty. It was not built to cater to the wishes of the mob such as a pure democracy and it was not built to cater to the elite such as an oligarchy or a monarchy. Justice Gorsuch writes,
“This republic belongs to us all–and it is up to all of us to keep it. I think that’s what Benjamin Franklin was getting at when he spoke publicly after he emerged from the Constitutional Convention. A passerby asked what kind of government the delegates intended to propose, and Franklin reportedly replied: “A republic, if you can keep it”.
As the saying goes: democracy is a verb. The success of our system is dependent on the participation and enthusiasm of the public. However, preserving a republic goes much further than that. In particular, a republic like ours requires an even greater emphasis on protecting individual liberty and upholding the institutions that do so, not just voting. Democracy in and of itself is nothing to be proud of nor will it lead to a flourishing society. A constitutional republic like the United States has laws that even the will of the majority must adhere to. The result is a rule of law that promotes freedom and prosperity. Things like the Bill of Rights, the Separation of Powers Doctrine, and federalism. Such institutions of liberty are not necessarily upheld by democratic participation but through a jealous and partisan defense of freedom.
Protecting our freedom is the ultimate reason why the American government exists. That is apparent in our founding documents that Gorsuch explains when he writes,
“Take the idea found in the very first sentence of the Constitution. The Constitution’s preamble says that “We the People” ordain and establish this Constitution” in order to secure the Blessing of Liberty to ourselves and our Posterity.” It is no small thing that the founders claimed our new government was formed by “We the People.” They didn’t say our new government was formed by the Continental Army or the Congress or the States or some bureaucratic drafting committee. Institutions like those, the preamble made clear, exist to serve the people–not the other way around.”
It goes without saying that service to the people means first and foremost protecting our liberty. Although it may be tempting to believe that our government should serve the interest of the majority or be a sort of parental body, our government exists first to preserve our life, liberty, and property. The Founders were adamant about this system of limited government because they saw firsthand what an unrestrained government was capable of. The entire premise of the Constitution and especially the Bill of Rights was inspired by their confrontations with the British crown. The Bill of Rights itself was a compromise with the Anti-Federalists who were skeptical of the Constitution’s ability to protect those rights. The Founders looked to history and observed the instability of pure democracies, the bloodshed created by monarchies, and the despotism inherent to systems without a separation of powers. They believed that with a robust system of constitutional self-rule that exists primarily to facilitate a system of ordered liberty, they could create a country that could last through the ages. That is why preserving our system of liberties is so important, even over alleged problems that might be solved by breaking these ideals. The temptations of short-term political gratification will likely render our country, the most prosperous and freest polity in human history, a short footnote in history.
The Separation of Powers Doctrine
The Separation of Powers doctrine is something Justice Gorsuch spends much time speaking about and for good reason. It is the bulwark against tyranny and essential to a system of self-government. In 2019, such a topic was certainly important because of the ever-growing power of the Executive branch and the atrophy of the Legislative branch along with the Judicial branch. In 2020, we have seen firsthand what happens when we deviate from this essential doctrine. Justice Gorsuch writes,
“The framers firmly believed that the rule of law depends on keeping all three governmental powers in their proper spheres. They knew, too, that eliding these boundaries can prove powerfully tempting. Handing over judicial functions to the executive branch, for example, surely holds much allure… They knew that when the executive is free to withdraw your legal rights, those rights are no longer protected by neutral legal principles, the judgment of independent judges, and a jury of your peers.”
Essentially the doctrine separates authority amongst the three branches of government, the Legislative, the Executive, and the Judicial. No one branch can be judge, jury, and executioner. The ability to make laws lies primarily with the hundreds of elected representatives in the legislature. They ought to be rambunctious, creative, and bold. The duty to enforce those laws lies with the Executive branch. This is where the heads of state reside along with their army of bureaucrats. It is important that they stay within the confines of the authority granted by the legislature, as many are unelected and exist to serve the mandate provided by the people. The numerous governors across America closing down businesses and restricting social activity without the blessing of their state legislatures is a clear violation of this doctrine. Finally, there is the Judicial branch which exists primarily to interpret the written text of the law as it was intended. It does not exist to create its own laws or interpret laws in a way that seems like it may forward what the court sees to be in the public interest.
Civility and Civics
What may be just as important as these institutional checks and balances on government are checks and balances on ourselves as well. Politics is warfare by other means which is why the government needs so many restrictions. However, what can be just as damaging as an unrestrained government is the unrestrained contamination of private life with politics. Justice Gorsuch writes,
“But a government of and by the people rests on the belief that the people should and can govern themselves–and do so in peace, with mutual respect. For all of that to work, the people must have some idea how their government operates–its essential structure and promises, what it was intended to do and prohibited from doing.”
A system of limited government and freedom is one that requires an informed as well as engaged population. Not necessarily just engaged in public service and duty, but also upholding common standards of decency towards one another. Human beings are inherently political animals that seek to dominate one another. One of the pillars of a free society is restraining those urges to give way towards a more inclusive and equal system.
Perhaps one of the most relevant pieces of wisdom Justice Gorsuch has on this topics is the following quote
“History teaches what happens when societies fail to pass on civic understandings and come to disdain civility: Civilization crumbles. Europe in the twentieth century had people, too, who, seeking to remake the social order in the vision of their ideology, thought the stakes of the day were too high to tolerate discourse and dissent. They also believed the ends justified the means, and it didn’t end well.”
The events he referred to have happened within the lifetimes of many still alive today. A continent that was and still is home to some of the most respected countries not too long ago saw the collapse of civilization and the rule of some of the most horrific tyrants in history. This is what makes our founding principles more important than any short-term political passion.
With the ideological balance of the Supreme Court now shifted towards the Originalist side of judicial interpretation, reading this book will provide a strong explanation about this judicial philosophy. Prior to the tenure of the late Justice Antontin Scalia, the idea of Originalism was not taken seriously; now six out of nine Supreme Court Justices subscribe to the idea. Justice Gorsuch writes,
“When I was in law school many professors and students seemed to assume that in disputes over a statute’s meaning a judge should turn to its legislative history, seek to discern the law’s purpose, and then do whatever is necessary to promote that perceived purpose in the case at hand…We were told that the Constitution is a “living” document.”
Originalism on the other hand posits that the text has meaning and that a judge should not attempt to tailor the meaning of a law to fit the situation, but to enforce it as it was written. This is especially important when it comes to the Constitution, as Originalism ensures that the rights within it will not be simply waived by a judge who feels that they are not useful at the time. Deferring to the purpose of laws and policies made by the other two branches effectively voids the Judicial branch’s ability to act as a balance. A current example would be the ongoing lockdowns which have resulted in the violation of countless rights. Many judges remain deferential to the intent of lockdowns despite explicit written text in the Constitution preventing such policies. A more severe example would be Korematsu v. United States, where countless Japanese-Americans were rounded up in concentration camps by the US Government during World War 2. The Supreme Court at the time ruled that was constitutional because it did not want to disrupt the war effort. An Originalist court may have prevented such an atrocity by ruling that the text of the Constitution prevents such violations of rights and there is no clause that carves out such powers even in wartime. The policy goals of today do not hold preference over existing law.
Justice Gorsuch is a shining example of a patriot and a public servant. He is someone who genuinely cares about the institutions the United States of America was built on and recognizes that those institutions mean nothing without an engaged citizenry. His book attempts to take on the monumental task of educating the reader why exactly we have all sorts of complicated checks and balances, why we have a court system, why the Constitution says what it says. It reminds us that our government exists primarily to protect our freedom and that this framework is something we ought to work to preserve. Preserve not just for ourselves but for future generations of Americans so that they too may experience what it is like to live free.