Justice Neil Gorsuch is out with a new book this week, titled Over Ruled: The Human Toll of Too Much Law.
It is, per the justice, a meditation on all the ways Americans are being strangled by pointless overregulation. In new interviews this weekend with theBut lost in that cacophony were some fascinating reflections from Gorsuch on his views about James Madison, originalism, and how history actually works.
Wilson believed that congressional decisions reflected the wisdom of the masses. But, unlike the court today, he also believed that presidential decisions reflected the wisdom of the masses. For Wilson, Congress and the president were in equal ways delegates of the people. Although forgotten today, he had a greater influence on the drafting than Madison, so the idea that the Constitution reflects the wisdom of the masses has good support, but it is because of Wilson, not Madison. Fittingly, the Constitution’s immortal opening words reflect Wilson’s vision of popular rule. He proposed that the Constitution begin “We the People.
There is an irony to the originalist view that is dominant on the Supreme Court today: The court’s originalism ignores the original understanding of the judicial role. Its activism is at odds with the original understanding of courts’ very limited role.is simply wrong. There were at least 31 federal and state cases handed down between the Constitution andin which a statute was held unconstitutional.
As I have said, Wilson was the convention’s primary champion of democracy. Morris was the leading opponent of slavery. Together, they championed a vision of expansive powers of Congress and the president that was very different from Madison’s more limited conceptions. If the court wants to recapture the actual original meaning of the Constitution’s text—which is the stated goal of textualists—it should not focus on Madison. The founders on whom it should focus are Wilson and Morris.
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