Justice Neil Gorsuch has two rules for his law clerks. “Rule No. 1: Don’t make stuff up,” he tells them. “Rule No. 2: When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.”
He is sitting in a wood-and-leather chair in his Supreme Court chambers. He’s discussing originalism, the idea that the Constitution’s meaning is the same in 2019 as in 1788. “Our Founders deliberately chose a written constitution,” he says. “Its writtenness was important to them. They rejected the English tradition of an unwritten constitution, because they wanted to fix certain things.”
To treat the Constitution as a “living” document, he says, is to regard it “more or less as a relic,” something kept “in the back of the church behind a screen, and you look at it as you walk by, and you move on.” But that’s “not what ‘We the People’ agreed to,” he adds. “We didn’t say five judges—or nine, or whatever—sitting in Washington get to govern 330 million people. Who would write such a thing down? Who would agree to that? That’s not a republic. I don’t know what that is, but it’s not a republic. Not a democracy.”
