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.