An earlier post on this blog by Mark Tushnet explained that Justice Gorsuch’s dissent in Gundy v. United States, which fires a loud shot across the bow of the administrative state, contained something like a fictionalized account of the facts behind Schechter Poultry.  In Gorsuch’s presentation, the Schechters were caught between the regulatory demands of the New Deal and their own religious commitments.  “Kosher butchers such as the Schechters,” Gorsuch wrote, “had a hard time following these rules.  Yet the government apparently singled out the Schechters as a test case[.]”  In other words, the Schechters were victims of the government’s failure to accommodate their religious beliefs.  Worse yet, the government deliberately went after them, the people whose violations arose for religious reasons.  But as Tushnet explains, none of this is true.  Nothing about the Schechters’ violations of the New Deal’s Codes of Fair Competition arose from any need to comply with the rules for kosher butchering.  For the details, I highly recommend Tushnet’s post. 

                It’s not hard to see why the fictionalized version of Schechter would be appealing to Gorsuch, who has both a skeptical view of administrative governance and a robust view of the accommodations that government should make for religious believers.  But one ought also to presume that Gorsuch would not tell the story of Schechter this way if he knew it to be false.  The opinion-writing sin here, I’ll stipulate, is more likely confirmation bias than deliberate distortion: someone (Gorsuch cites the writer Amity Shlaes as his source) offered an account of Schechter that was congenial to Gorsuch’s views, and Gorsuch accepted it without sufficient interrogation.  That fallacious account now appears in the U.S. Reports as if it were factual.

                I rehearse all this as prologue to pointing out a second and likely similar problem in Gorsuch’s Gundy opinion.  This second problem is about John Locke, the Founders, and the separation of powers.  Unlike the hiccup about the Schechters, which is a matter of atmospherics at the periphery of Gorsuch’s opinion, Gorsuch’s treatment of Locke is part of his animating substantive argument.  It contributes directly to Gorsuch’s case for the proposition that broad legislative delegations to administrative agencies are at odds with the Constitution.

                Part I of Gorsuch’s dissent is introductory.  In Part II, Gorsuch builds his theory about nondelegation from the fundamentals of constitutional argument, going back to the text and the Founding.  In the third paragraph of his account, by way of explaining how the Framers thought about the separation of powers, Gorsuch quotes a passage a bit more than a hundred words long from John Locke’s Second Treatise of Government.  Locke was not a Framer of the Constitution: he lived in the wrong century and also in the wrong hemisphere.  But Gorsuch nonetheless confidently presents the passage from Locke as a statement of the “particular arrangement” on which the “framers insist[ed].”  Locke, says Gorsuch, was “one of the thinkers who most influenced the framers’ understanding of the separation of powers[.]” 

                Was he really?  Gorsuch’s dissent, which has a hundred and seven footnotes, cites no authority for the proposition that Locke shaped the dominant Founding conception of the separation of powers.  Other than his say-so, Gorsuch gives the reader no reason to think that the Framers meant to erect just the system of separated powers that Locke articulated in this quoted passage, written a hundred years before and three thousand miles away.  And there is serious reason to doubt that the Framers had any particular commitment to following Locke on the point.  Locke was, to be sure, an influential thinker in the English-speaking world during the eighteenth century: there’s a famous phrase in the Declaration of Independence that sure seems like a riff on his work.  But the fact that Jefferson riffed on Locke in the Declaration does not mean that Locke was pervasively influential in the formation of the Constitution. 

                For several decades now, leading scholars have cast considerable doubt on the idea that Locke’s political writing was particularly influential for the Founders.  (John Dunn and Mark Goldie are good examples, and what follows in this paragraph largely tracks their work.)  As a general matter, Locke’s high reputation as a philosopher in the first century after he wrote was mostly a function of his non-political work, especially his Essay Concerning Human Understanding.  Pro-independence Americans seem to have become significantly more interested in the Two Treatises of Government in the decade leading up to 1776, and it isn’t hard to understand why an argument by a renowned English philosopher that could be used to justify political revolution would have seemed attractive to that population at that moment.  But once independence was achieved, American interest in Locke seems to have declined precipitously.  When the project at hand was constructing a working government rather than rebelling against one, Americans looked elsewhere.  In this connection Goldie cites Duncan Forbes, who remarked about Locke that it is inappropriate to build a theory of marriage upon the occasional necessity of divorce.  In short, even if Locke was influential in the 1770s, he does not seem to have been a major influence in the formation of the Constitution.  Gorsuch’s opinion does nothing to meet, or even acknowledge, the accordingly problematic nature of turning to Locke as an explicator of the Framers’ ideas.

                The choice to use Locke as a guide to the Framers’ ideas about the separation of powers in particular is perhaps more problematic still.  Even if one is unaware of the historiography about the relationship between Locke’s various works and Americans in different decades of the eighteenth century, a reader of Locke’s political writings should realize that Locke’s view of the separation of powers differed in basic ways from the scheme embodied by the Constitution.  This isn’t a subtle point: Locke and the Founders used different categories to describe the powers that are distributed among institutions of government.  The Constitution distributes legislative, executive, and judicial powers.  Locke didn’t think in those terms.  He described the distribution of legislative, executive, and federative powers—“federative” powers being, basically, the powers of foreign affairs.  Locke and the Founders also disagreed about who should exercise some important specific powers within those general categories.  In Locke’s view, foreign affairs (that is, “federative”) powers should be lodged in the same place as executive power, even though the two kinds of power are conceptually distinct.  The Constitution, of course, divides what Locke would have recognized as the national government’s federative powers between the President (who is commander-in-chief of the military, and who receives ambassadors) and Congress (which declares war and regulates commerce with foreign nations).  None of this is to say that the Framers’ views of the separation of powers was wholly different from Locke’s.  But it is odd to claim that a thinker who didn’t even use the categories legislative, executive, and judicial to carve up a government’s power is also a thinker whose writings specify the view of the separation of powers on which the framers particularly insisted.  The org chart of the separation of powers articulated in Locke’s Second Treatise is not the org chart that the Constitution established. 

                The link between this problem and the Schechter Poultry problem should be clear enough.  I do not wish to charge Gorsuch with deliberately misrepresenting the relationship between Locke and the Framers.  I think it likely that Gorsuch found a passage in Locke that articulated a view congenial to the one he was pressing in Gundy and, perhaps from a general sense that Locke was an important thinker, helped himself in good faith to the inference that Locke’s view on the point was also the view animating the Framers at Philadelphia.  But as with Schechter, what results is a distortion.  And this time, it is a distortion that claims the authority of the Founders for a call to remake American law in a pretty significant way.

                Everyone makes mistakes.  And there is nothing new about Supreme Court Justices handling historical materials badly.  But one might hope that Gorsuch would strive to handle them with care.  He is, after all, prominently committed to the originalist view that the content of the law today is importantly determined by historical facts from long ago.  If so, he should insist on getting the history right. 

Many originalists, Gorsuch included, claim that one virtue of originalism is its capacity to generate legal rules that do not depend on the views of the decisionmakers.  (Not all originalists claim this, but many do, and Gorsuch is one of them.)  In practice, however, originalist interpretation tends to feature judges reading historical sources to mean what those judges would like the sources to mean.  Some originalists hold out hope that judges can learn to handle historical materials better than most judges have in the past, and more than a few people think that Gorsuch might become an exemplar of such a better way.  His choice to write an opinion with more than a hundred footnotes suggests an aspiration of that kind, or at least a consciousness of the virtues of being well-grounded in the sources.  But if Gorsuch is to vindicate originalism against the charge that in practice originalism tends to function as a vehicle for the preferences of the interpreter, he will need to be more careful—perhaps in particular, more inclined to think critically about whether the sources actually support his preferred positions—than he seems to have been in Gundy.