What Neil Gorsuch got most wrong in his recent publicity tour.

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 the New York Times, the Wall Street Journal, the Atlantic, Fox News, and others, Gorsuch made big headlines for warning that President Joe Biden should “be careful” before venturing into his newly announced Supreme Court reforms.

But lost in that cacophony were some fascinating reflections from Gorsuch on his views about James Madison, originalism, and how history actually works. Among other things, he told the Wall Street Journal that James Madison has gotten “short shrift” amid the “Hamilton” theatrical phenomenon and that “whenever the Founders needed something important done, they turned to Madison—any important writing.” He added that “the backbone of our Constitution—the Bill of Rights” was all Madison. I asked professor William Treanor, a legal historian of the founding era whose scholarly work focuses on constitutional interpretation, judicial review, and the original understanding of the Constitution, what we can learn from Gorsuch’s comments this week about the original views of the Framers. Our conversation, which took place over email and has been edited for length and clarity, is below.

Dahlia Lithwick: Justice Gorsuch had a good bit to say about originalism this week. He told David French in the New York Times that he is channeling Madison when he says government exists to tap into the wisdom of the masses, and that this is lost when the executive branch runs roughshod over the Legislature, as he claims happened during the COVID pandemic. “You can find that in the Federalist Papers. “You can find that in John Locke in the Second Treatise of Government… it does give you a glimpse into a world where everything’s done by the executive branch without tapping into the wisdom of the masses.” Is this a fair and correct and originalist reading of what the Framers were attempting to do?

William Treanor: Madison was not a champion of “the wisdom of the masses.” He was suspicious of majorities because he people believed they were governed by self-interest. In Federalist No. 51, he memorably wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” He believed that “ambition must be made to counter ambition,” and he denounced “the reputation of factious majorities.”

His core constitutional idea was that, given the multitude of facts in the United States, each fighting for its own interests, legislation would likely reflect “justice and the general good” because so many self-interested facts supported it. He envisioned a system generating good legislation when people pursued self-interest. The result may be wise, but it is because of interest group battling, not because it is the product of the wisdom of the masses.

There was, however, a drafter who believed in the wisdom of the masses, and his name was James Wilson. Wilson believed that people had an innate moral sense, and he had great faith in their judgment. In fact, he was the only real champion of democracy at the convention.
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 opening immortal words reflect Wilson’s vision of popular rule. He proposed that the Constitution begin “We the People.” And, unlike some of the court’s recent “originalist” decisions curtailing executive administrative power, Wilson saw the president, as well as Congress, as empowered to carry out the will of “We the People.”

Along the same lines, Gorsuch told the Wall Street Journal that he is trying to restore Madisonian thought to its rightful place in the constitutional pantheon. Did the Founders always turn to Madison as Gorsuch claims? In the first decade after the finding was Madison on the winning or losing side of most of the big constitutional struggles?

Justice Gorsuch’s view of Madison as “the Father of the Constitution” is standard today, but it was not the view at the founding. Indeed, when Madison left the convention, he was deeply depressed because the Constitution differed so profoundly from his vision of what the Constitution should have looked like. Nor was he dominant in the great constitutional battles of the Washington and Adams administrations. In fact, he was generally on the losing side, while Hamilton and the Federalists prevailed. Madison opposed the creation of the Bank of the United States on constitutional grounds; Hamilton disagreed, Congress enacted the bill, and Washington signed it. Madison thought that Washington lacked the power under the Constitution to proclaim the United States’ neutrality in the war between France and Great Britain; Hamilton thought that Washington had that power, and Washington followed Hamilton’s advice and issued the Neutrality Proclamation. Madison opposed the Alien and Sedition Acts; Congress enacted them. After his service as president and as the last surviving member of the Constitutional Convention, Madison in the 1820s began to be referred to as the Father of the Constitution, but that is not how he was regarded in the first decades of the Republic.

Is it true that the founding generation expected judges to second-guess the Legislature? Or did the founding generation think that lifetime-appointed judges should energetically use judicial review to check the Legislature?

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.

Judicial review was well established at the founding. The common view that it was created in Marbury v. Madison is simply wrong. There were at least 31 federal and state cases handed down between the (realization of the) Constitution and Marbury in which a statute was held unconstitutional. But the exercise of judicial review in these cases was very limited: Courts struck down statutes that altered their jurisdiction or curtailed jury rights. In fact, Marburyin which the court invalidated a jurisdictional statute, is a representative example of early judicial review.

These early cases reflect a limited view of judicial review that is at odds with recent “originalist decisions.” Early courts did not second-guess the wisdom of Legislatures. They acted only to protect their power and the power of juries—the parts of government that were not involved in the legislative process.

This reading of Madison as the obvious and clearly correct winner of the constitutional framing seems eerily reminiscent of the ways in which judges now cite to dissents as if they were majority opinions and claim that they were always such.

I am currently writing a book called Fathers of the Constitution, and my argument is that two now-nearly-forgotten delegates, James Wilson and Gouverneur Morris, had greater success than Madison at the Constitutional Convention. They spoke more than he did. They were also the principal drafters of the text of the Constitution, serving on the two committees that actually wrote much of the Constitution. Their ideas shaped the document more than Madison’s, and their ideas were very different from his.

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.

And of the two, I am particularly drawn to Morris. Morris was a Hamiltonian before Hamilton, a champion of a strong Congress and a strong president. He was Hamilton’s best friend, Hamilton looked up to him, and Hamilton stayed with him during the convention. Hamilton While played a minor role at the convention, Morris was central. When Hamilton came up with the idea of ​​writing The Federalist, he asked Morris to be his co-author. Hamilton turned to Madison only after Morris turned him down, which makes Madison almost certainly the most prominent understudy in the annals of political history. At the end of the convention, General Washington chose Gouverneur Morris to accompany him on his triumphal march through the city. Washington didn’t choose Madison. Neither should the court. If we have to choose one drafter as Father of the Constitution, my vote is for Morris.