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Tuesday, April 4, 2017

A Supreme Court Nominee Who Understands the Danger of Power

Gorsuch knows that separation of powers is fundamental to preventing tyranny.

Amid the spectacle of the Senate Judiciary Committee’s hearings on Judge Neil Gorsuch’s nomination to the U.S. Supreme Court, there emerged that rare visitor to the U.S. Capitol: some nuggets of common sense. These nuggets came from Senator Chuck Grassley of Iowa, the Chairman of the Senate Judiciary Committee, and from the Supreme Court nominee himself. They addressed that feature of our constitutional design that most powerfully preserves and protects liberty.

That feature, which limits what the government may do, is it the Bill of Rights? The late Justice Antonin Scalia, whose seat on the Court Judge Gorsuch would fill, liked to point out, “Every tin-horn dictator in the world today, every president for life, has a Bill of Rights.”

The very word “constitution” suggests not words but structure.

Designed to Separate and Check Power

As Senator Grassley observed:

The most important feature of our Constitution is the design of the document itself. It divides the limited power of government vertically, between the states and federal government. And it distributes power horizontally, between the co-equal branches.”

Our constitutional bedrock is, in three words, separation of powers.

It was the French political philosopher Montesquieu, writing in the Age of Enlightenment, who was the chief proponent of the separation of powers. Montesquieu’s The Spirit of the Laws, published in 1748, “was hailed as the first systematic treatise on politics since Aristotle” and was a major influence on our system of government.

Montesquieu identified three different powers or functions of government: legislative, executive, and judicial. Significantly, he treated the judicial power “as on a par, analytically, with the other two functions of government,” detached from the upper or aristocratic chamber of the legislature, and vested largely in the ordinary courts of the land. According to Montesquieu, each of these three functions should be exercised by a separate branch or body of the government, with its own distinct personnel.

Montesquieu further maintained that there should be checks and balances through, for example, the executive’s power to veto laws and the legislature’s power to impeach executive officers. Then each of the powers in a “moderate government” could better “counterpoise the other.”

In a system with checks and balances, where governmental powers are separated on a functional basis, individual liberty might best be protected. As Senator Grassley put it, “It’s this delicate balance of power, entrusted to competing factions, that ensures the liberty of the People will endure.”

Abuse of Power

For both Montesquieu and our Founders, the danger to be protected against was the abuse that the concentration of power invites.

Montesquieu warned:

[C]onstant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.”

Judge Gorsuch emphasized this point in weighing the legacy of, and quoting, Justice Scalia:

The genius of the American constitutional system is the dispersal of power. Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.”

Judge Gorsuch on Our Constitutional Design

What does Judge Gorsuch himself have to say on these matters?

Here’s what he told the Senate Judiciary Committee on March 21:

On the separation of powers, it is …the genius of the Constitution. Madison thought that the separation of powers was perhaps the most important liberty-guaranteeing device in the whole Constitution and this is a point of civics that I do think maybe is lost today: how valuable the separation of powers is. That you have an Article I: The people’s representatives make the law. . . . Article II, the President’s job, is to faithfully execute your laws. And our job, Article III, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. And if those roles were confused, and power amalgamated, the Founders worried that that would be the very definition of tyranny.

And you can see why. Judges would make pretty rotten legislators. We’re life-tenured, right? You can’t get rid of us. It only takes a couple of us to make a decision, or nine, or twelve, depending on the court. It would be a pretty poor way to run a democracy. And at the same time, with respect, legislators might not make great judges, because they’re answerable to the people. And when you come to court with a case or a controversy about past facts, you want a neutral, rigidly neutral, fair, scrupulously fair decision-maker. You want somebody who’s going to put politics aside.

So the separation of powers I don’t think has lost any of its genius over 200 years. In fact, it’s proven it.

Let’s welcome, then, the Honorable Neil M. Gorsuch, the next Associate Justice of the U.S. Supreme Court.

  • Laura Bennett Peterson is an attorney and economist in Washington, D.C. She taught antitrust law and torts as an Associate Professor at Suffolk University Law School and was a John M. Olin Public Affairs Fellow and visiting scholar at the Hoover Institution at Stanford University. She practiced law in the litigation department of the Proskauer Rose law firm in New York City and served as a White House and a Treasury Department economist.