Justice Gorsuch on 1776,
His Court Colleagues, and the Patriotic-Education Gap: Transcript
Dan McLaughlin, National Review
‘I know we’re missing something . . . and I’m very distressed by it,’ the justice said of declining civics and history education, in an interview with NR.
Last week, I conducted an interview with Justice Neil Gorsuch about his new children’s book, Heroes of 1776: The Story of the Declaration of Independence, as well as the coming 250th birthday of the nation, his memories of the 1976 Bicentennial, the importance of patriotic education, the continuity of the Supreme Court, our age of political violence, and the continuing relevance of the declaration and the American Revolution. The full transcript (and video) of that interview follows, lightly edited for clarity:
Dan McLaughlin: All right, Justice Gorsuch, great to have you here. Tell us a little bit about — this is a children’s book. What do you see as the target age for this book?
Justice Gorsuch: Well, first of all, thank you very much for having me. It’s a great pleasure to be with National Review. I remember it being very influential when I was the age of these guys behind the camera, and, as we were talking about earlier, James Buckley was a deep influence on me as a judge and one of the most gentle men I knew.
All right, so, target age of the book. I kind of think we had two groups in mind. So, I wrote this with one of my former law clerks, Janie Nitze. And she is one of the most talented lawyers I know, clerked for me and for Justice Sotomayor and is now a mother of three young children and started her own preschool because she was dissatisfied with their offerings. And we wanted to reach both kids and their parents. And I hope parents will enjoy this and learn a few things along the way that they didn’t know about the Declaration of Independence and the signers. I think C. S. Lewis said, you know, it’s a pretty crummy children’s book if the parents don’t enjoy it too.
McLaughlin: Yeah, because, looking through it, it certainly, the illustration certainly looks as if it was aimed mainly at kids who are old enough to read it themselves, but, I guess some people will be reading it aloud as well.
Gorsuch: Yeah. And you’re right, the illustrations I think will draw in the little ones, right? Chris Ellison, our artist, he should win a prize for his work. It’s just stunningly beautiful. It’s all hand painted. No AI, no computers, you know, no cartoons, and he really brings these people to life. And little details, like we talk about how much Jefferson loved nature and that he had a mockingbird that went around with him on his shoulder named Dick. And if you look, little children are gonna find Dick throughout the book in various places.
McLaughlin: So, you were eight for the Bicentennial.
Gorsuch: Yes, that’s about right.
McLaughlin: So, what is your memory of that and what stuck with you from that?
Gorsuch: Yeah, I’m — we’re probably not too far off in age. I suspect you’re a little younger—
McLaughlin: I was four, so I remember it, but not perhaps—
Gorsuch: Okay, I do remember it very vividly. The country — if we think we live in tough times, everybody always thinks they live in tough times is what I’ve figured out, okay? But in 1976, we’d just come out of Watergate. We had an unelected president. We were suffering from stagflation, you know, interest rates like 18 percent or 20 percent. I mean, think about that. You guys could never buy a house, you two. Inflation, extraordinarily high. Vietnam had just ended and there were a lot of young men who I knew who had come back from Vietnam in our neighborhood or our church who were not the same people who left. And it was a deeply troubling time after the civil rights movements, you know, the assassinations, all of that. And it was a moment that kind of brought us together again and made us realize that for all our differences and troubles, there’s a lot that unites us and a lot more that unites us than divides us. And it was just simple things from painting fire hydrants, red, white, and blue. I remember the Gemma family across the street, big Italian family, and they had one of those VW buses. You remember those things?
And they painted the American flag, stars and stripes with the 13 stars on the side of their red VW. And of course the giant ships in the harbors on the East Coast — we all watched with fascination because there’s no water in Colorado. And I hope that the 250th is something like that.
McLaughlin: Yeah, it’s a shame that Semiquincentennial doesn’t quite roll off the tongue the same way.
Gorsuch: But think about what it means. What does it mean? It means halfway to 500. It denotes that we’re on a journey, and that’s exactly how I think of our declaration, right? I mean, those three big ideas in the declaration that all of us are equal, that we all have unalienable rights that come from God, not from government, that we have the right to rule ourselves. I mean, those are perfect ideas. They speak to every soul, they exclude no one, but it’s a journey to realize those ideas. It’s been a journey and it will always be a journey.
McLaughlin: And our generation had Schoolhouse Rock.
Gorsuch: Yeah, that was 1976 as well that it came out to celebrate the Bicentennial.
McLaughlin: And there was a lot of, I think, patriotic education at the time. Is there — do we have as much of that today, do you think? Or, are we — is this filling a need, a hole that you think is missing?
Gorsuch: I know we’re missing something, and there are a variety of reasons why we don’t teach history and we don’t teach civics anymore. And I’m very distressed by it because, you know, surveys suggest like 13 percent of eighth graders are proficient in history at grade level, 22 percent in civics. And if you think it’s bad for them, let’s go to college. Turns out like 18 percent of colleges require a course in American history. One lousy course. And adults: Six in ten cannot pass the citizenship test that my wife took, and I can tell you it’s not hard, right? So yes, we have a deep problem and Janie — it was really Janie’s idea. She said, “You know, you’ve been complaining about this for a long time, old man, we should do something about it.” And so yes, this is an attempt to help.
McLaughlin: You mentioned your wife is British. Did she come to this with a different background and view of 1776?
Gorsuch: You know, I think my wife likes to focus on how much we mimic and how much we derive from England, and she’s not wrong, right? I mean, if you look around the country, virtually every other state and every other town is named after a British king or queen, right? Virginia, Maryland as she would say, all right? I mean, it just goes on and on. So she likes to focus on that, but you know, it wasn’t always thus, right?
I mean, in the book, we talk about the Franklin family. Ben Franklin, you know, one of the leading patriots, of course, we all know that. Do you know about his son William? You know about his son William, but he was a deep loyalist, right? At that time, you have to remember only about 40 percent of the people believed in independence and even during the debate over independence, it was a close-run thing whether they’re going to declare independence. And 30 percent or so were loyalists and the rest were kind of uncertain in between, you know. William wound up moving to England and the two men didn’t talk for years and years. And Franklin — Ben, that is — was deeply, deeply angry and distressed because by signing the declaration, he kind of signed his own death warrant. I mean, we forget that this was an act of treason, subject to death by hanging, and they really took that seriously. And we can talk about the suffering of those people, but his son was among those who were effectively seeking his death. That’s how he saw it. It was very personal and very real.
McLaughlin: You talked in your last book that you and Janie Nitze did, Over Ruled, talked about the individual stories, to illustrate overregulation. And I feel like this book is trying to do some of the same thing with the signers of the declaration, get to the individual stories?
Gorsuch: Well, how do you get somebody hooked on an idea? And I think facts and figures, you know — all right, they’re 13 percent, 18 percent or whatever — kind of don’t speak to us the way stories do. That’s how we relate to one another. You know, I wanna know your story, you wanna know mine, right? And that’s how we learn, really. And, we figure if you’re gonna get interested in the Stamp Act, right? And if you’re gonna get interested in the Articles of Confederation, it might be because of the people behind them. And the 56 signers were incredibly, incredibly interesting people, and their stories are moving.
We forget that the revolution was eight bloody long years. A third of the signers had their homes destroyed. Many of them were imprisoned. Some of their wives were imprisoned. Some of their children were imprisoned. And many of them gave their fortunes to the revolution and died poor as a result of it. So, telling those stories of courage and sacrifice we hope might inspire a few young minds and make them realize the declaration’s three big ideas are not inevitable. They were not inevitable, and their preservation is not inevitable, and that the torch passes to each generation. We’re a creedal nation. What unites us is not a religion, it’s not a race; it’s a belief in those three ideals. That’s our mission statement as a country. And if the people don’t get inspired to learn about them and believe in them, the baton drops.
McLaughlin: I mean, that was why Ronald Reagan in his farewell address, that was his argument — we need to teach informed patriotism to the next generation.
Gorsuch: It was also George Washington’s speech toward the end of his administration where he was advocating for a national university to teach civics and virtues and he wasn’t afraid to talk about virtues that are necessary to maintain a republic. And that is something that all of the Founders agreed on. I mean, Jefferson said, you know, if you expect a country to remain free and ignorant, well, you want something that’s never been and never will be.
McLaughlin: And that’s the old debate, virtue or liberty, but you really need one to get the other.
Gorsuch: Yes.
McLaughlin: I mean, just for perspective, I mean, you’ve been on the Court now just about nine years — so it’s only one year longer than this war continued. I mean, to think of all that has happened in the news, say, in the last eight years, that the revolution ran that long.
Gorsuch: Well, I’m not about to say my suffering matches theirs if that’s what you’re getting at, but it’s been a while, yes, yeah.
McLaughlin: Now you’re on a Court with a lot of strong personalities, with strong opinions about big things. The justices — you and your colleagues sometimes disagree, and quarrel even with the people you usually agree with, even with the people who agree with you that day. You attracted some attention in the tariff case with your concurring opinion, and we’ve seen other concurring opinions like that that are taking to task kind of everybody else, the people on your side today, the people on your side on other days. Does that give you — that experience of sitting on the Court — does that give you some more sympathy or insight into those men in Philadelphia in the summer of 1776, hammering out the declaration, quarreling over what should be in, what should be out, what our — what is our next step?
Gorsuch: Boy, that was a very clever bridge from present day back to 1776. Let me take both halves of that.
So today you guys give us 70 of the hardest cases in the country every year and you are a litigious bunch. You all file about 50 million lawsuits every year in this country. Think about that. I’m not counting your traffic tickets over there, all right? They’re real lawsuits and you give us the ones where lower court judges have disagreed. I mean that that’s what this Court does. It resolves disagreements over the meaning of federal law that have split the circuits. You know that as a lawyer. That’s — so you’re giving us stuff that’s hard, and you’re asking nine people from across the country, appointed by five different presidents over the course of 30 years, to work together to resolve those cases. Can you guys agree on where to go to lunch? None of you? Yeah, I don’t know. Yeah, right, exactly, all right.
And I actually think it’s kind of magical, our rule of law in this country, because first of all there are only about 60 or 70 cases a year in which the lower courts seriously disagree over the meaning of federal law. One could argue there’s a few more, a few fewer or whatever, but it’s not that many. It’s kind of incredible. You can — you know your rights and duties in this country under the law, much more so than almost any place on the planet or in the history of the world. Okay, fine. Of those 60–70 cases, the nine of us are unanimous about 40 percent of the time. Think about that. Think about what it takes. Am I ever gonna convince Sonia Sotomayor to become an originalist? I kind of doubt it, right? Is she ever gonna—
McLaughlin: Hope springs eternal.
Gorsuch: It does, it does. Ideas tend to win out over time, but I, you know, I understand that she has a different way of approaching law than I do, and she appreciates that I do, too. We know that. We don’t get angry over that. We get on with it, okay? And we start by saying, where — if I listen to you talk — we sit around a room in a conference room. I just got out of there, okay? And we sit around and we listen. We don’t interrupt. There are no raised voices in the conference room ever, right? And I listen. They listen. We find where we can agree, and we’re able to become unanimous in cases the lower courts have disagreed on about 40 percent of the time.
Now, I know what’s going through your head. You’re thinking, well, what about those 5–4s, and 6–3s? Okay, fine. That’s about a third of our docket, all right? But only about half of that third of the 5–4s, and 6–3s you might imagine, and the rest of them are scrambled every which way. All right, now those two figures, that 40 percent and that third, same as they were more or less in 1945 when Franklin Roosevelt had appointed eight of the nine justices of the Supreme Court. So, the one thing I know about the Supreme Court is very little changes, right?
We have different philosophies on how we approach the law, but I sit across from the table with people I know love this country. Love the Declaration of Independence. Love our Constitution as much as I do. All right, now you want to go back to 1776. All right, fine. Did they disagree? Oh my goodness, we just talked about — they had a hard time getting unanimity on independence, all right? And let’s take Jefferson and Adams, who are two of the central figures in the book, along with a lot of people you don’t know about, or are less well known. Jefferson and Adams were peas in a pod when it came to the declaration. They were the instigators in a lot of ways, and they worked on the document itself together very closely. Dear friends. And then of course, they completely disagreed on how to implement the declaration and the Constitution. One wanted a very strong central government, the other a much, much weaker one. They fought. They didn’t speak for years. And then toward the end of their life, a friend kind of interceded and said, “Come on, you two.” And they started writing letters and they exchanged over 140 of them in the last part of their life. And what they realized is what I realized and what I try to remember when I’m disagreeing and we’re going hammer and tong over some statutory interpretation case, that that person loves this country as much as I do.
McLaughlin: And Hamilton and Madison, the same — Federalist Papers and then opposite sides.
Gorsuch: And Andrew Jackson walked around with two bullets in him from duels that he fought, you know, and, when an assassination attempt with him just across the street of the Capitol failed, he went after the guy with a cane, and they had to rescue the poor guy from the president.
I mean, you know, democracy is a rough and tumble business. It is. I’m not here to tell you it isn’t, but it’s magical, and it’s through those debates and disagreements that we are — that’s actually our strength if we can harness it. Because the fact that we all can speak our minds freely — and we can have a contest of ideas — means the best things emerge and because we have to compromise with one another and listen to one another, we find ways to mediate our differences so we can live together that, you know, that’s why we’re much more robust and resilient than a monarchy or you know, a despotism which is so much more brittle. What’s the weakness of a democracy? If we start taking those disagreements beyond disagreements and fail to recognize the humanity of the person across from us.
McLaughlin: Yeah, I sadly enough — I feel like, at different times when I’m interviewing somebody, I can say, well, look what just happened this week, and it seems like it’s an every week thing these days.
I get that. But, you know, you go — and that’s why I think looking back through history is so important for our kids because they think, and we all think, our times are unique and our troubles are profound. And I’m not here to tell you we don’t have our challenges. But I will tell you it has always been thus.
McLaughlin: What role should the declaration play in understanding the Constitution and interpreting the Constitution?
Gorsuch: Well, I think of the declaration — is kind of our mission statement. If you’re a corporation, if you want to put it like that, or a kid or your report card, how are you doing? Here are these three ideas we are really aspiring to. And I think of the Constitution as a how-to manual, right? The nuts and bolts of how we’re gonna try and get to those ideas, and so my job is to apply my part of the how-to manual, all right? Now, I’m, you know, one-third of one-half of the manual, right? The manual’s got three branches of government, it’s got federalism on top of that. So I gotta pay attention to my part of the manual and kind of stay out of other people’s part of it. And if we all do our bit, maybe we’ll progress toward those ideas.
McLaughlin: Are we teaching enough? Are law students learning enough of the Founding era?
Gorsuch: No, no, no, they’re not. They, I get disturbed when I — so we’re sitting in the conference room and there’s Charles Evans Hughes and, you know, Taft over there and I have law students in here who don’t know those men, can’t recognize them. I bring them into my chambers and they don’t recognize James Madison. Okay, smart young law students. And I just think it’s tragic. They all want to change the world. Great. I say great. There’s a lot of improvement to be made. All right. But if you don’t know your history. If you don’t know why the gate is there — why it was put there — you just want it removed. Well, watch out. Here come the buffalo. You need to know your history.
McLaughlin: That’s a very Western metaphor.
Gorsuch: Well, mixed in with a little bit of Chesterton.
McLaughlin: Yeah — I mean almost nobody’s read the Articles of Confederation, for example, which to know how we got the Constitution, you gotta know what, what they tried first.
First, you need to know why we rebelled, right? What were the complaints? You know, why did they feel the need to do that? Is it just tea in Boston Harbor? Did it have something to do with juries and judges, a lack of independence of them? And did it have — a lack of representation in their voices did have a little bit to do with the ideas that we think about with federalism. And then of course, you’re right, with the experiment with the articles, you know, why did we get rid of those? Maybe we went too far in the other direction. We wanted to decentralize in our fight against the king, and we went to the opposite extreme. Maybe the Constitution was a way to try to find a middle ground. But yes, no, nobody learns about that anymore.
McLaughlin: And one of the miracles is that in the middle of all of this they don’t just write the declaration and send home, you know, delegates to find out what their state legislatures are instructing them to do. They write this Constitution. Even if it didn’t work, they write all of these state constitutions. They hold elections in states that are half occupied by the British.
Gorsuch: Oh, I mean, one of the stories in the book is about the first printing of the declaration, with the signers’ names on it. Where were they? They’re in Baltimore. Why was Congress meeting in Baltimore? I thought it was Philadelphia, huh? Huh. Well, the British were attacking Philadelphia, right? And Congress — I mean, this is how fragile, how contingent all this was — had retreated to Baltimore, but they needed to get the declaration out. They had to get it out fast because as we discussed, not everybody was behind this project and they needed to rally people, they needed to persuade people. And so, they turned to a local printer, a Patriot printer, M. K. Goddard, who published a Patriot newspaper and always put at the bottom of the newspaper printed by M. K. Goddard. Well, M. K. Goddard is Mary Katharine Goddard and used her initials for obvious reasons at that time. When it came to the declaration, what did she do? She put at the bottom of that document printed by Mary Katharine Goddard in Baltimore, Maryland, because she wanted to be identified as a patriot too, even though it could have cost her her life as well.
McLaughlin: Yeah, I mean, the amount that they had to put themselves on the line, really, really should, should be part of what we appreciate about all of this, about the sacrifices they had to make.
Gorsuch: Thomas Nelson, you know, one of, one of the signers, was the head of the Virginia militia at the Battle of Yorktown. He saw that the British were using his house as one of their headquarters — is one of the stories in the book. And he didn’t hesitate to have his men fire on it. And when he died, he died very poor, having spent most of his fortune in support of the revolution. They really did pledge their lives, their sacred honor, their fortunes to the cause, and he was asked on his deathbed, you know, do you have any regrets? And he said, I’d do it all over again.
McLaughlin: There’s, of course, you have in here the great story of Ben Franklin advising Jefferson as he saw some of his favorite pieces of the declaration get cut out. His story of the hat maker starts off with a long sign, and it ends up with just a name and a picture of a hat. I guess we’ve all read majority opinions of the court down through the years that look a little bit like the hat sign with nothing but a picture of name on it.
Gorsuch: Understand, Jefferson called them mutilations. It’s a pretty perfect document in a lot of ways. And of course there’s a big debate over who should write the declaration. There’s a great story about that, and Adams wrote this down, so it’s recorded in his words in the book, and it’s kind of priceless, I think, you know, Adams says to Jefferson, “You know, you should write the declaration,” and Jefferson says, “Oh no, no, no, no, no, you do it.” And Jefferson, Adams said, didn’t utter more than three sentences in a row ever during that meeting of the Continental Congress. I mean, he was very quiet, in public. And so he was very reticent. Adams is like, “No, no, no, no, you gotta do it. I’ll give you three reasons. First, you’re a Virginian, and a Virginian should be head of this business because, you know, those Massachusetts guys were a little rabble rousing. They need to bring other people along and Virginia was the wealthiest, largest colony. Okay. Second, I’m obnoxious, I am suspected and unpopular, and you are very much otherwise. And reason third. You write ten times better than I do.” And so that’s how they resolved how to do it. But it was a process, that’s for sure.
McLaughlin: What do you think is the most important thing for — whether it’s students of the Constitution or students of the revolution to know about why they rebelled?
Gorsuch: I think it has to do with those three ideas we’ve talked about. They really believed in those three ideas. And they seem like the air we breathe today, we take them so for granted, like the water a fish swims in [and] doesn’t even notice it. But you have to remember that in 1776, those were unbelievably crazy radical ideas. The idea you rule yourself? Nobody in Europe did that. You have rights. No, you have grace from the king. Right, we’re all equal. Kings and serfs, goodness, no. Those — a British newspaper called the Declaration of Independence — Americans had declared for themselves the unalienable right to talk nonsense, Okay? And a lot of people still think it’s nonsense around the world today, and if we don’t take care to learn about them, to preserve them, and to recommit ourselves to them in every generation, there’s nothing inevitable about their continuity.
McLaughlin: George Washington’s justices — or the justices he appointed, I guess they, once in, they’re not his justices anymore — but Washington’s appointees to the Court spent a lot of time riding circuit, not only riding circuit, but giving speeches and explanations to local juries and grand juries about the Constitution. Here’s what it says, here’s what it means. Is that part of your role? Do you think it to be something of a public ambassador for the Court and the Constitution? Is that part of what you see as your job?
Gorsuch: Well, I actually think if you brought the Founders back today and said, “Walk around the executive branch, walk around Congress, now come over here to the Court.” I don’t know whether it’s a good thing or a bad thing, but I think the one institution they’d probably recognize most easily is this institution. Nine older people sitting around arguing about whether this dangling modifier modifies this, that, or the other thing, right? And what does the First Amendment mean? And I think that’s something I take some pride in that, you know, we do our own work and it would be recognizable. We don’t ride circuit anymore, but in terms of books, I think Supreme Court justices have written over 350 books. And I don’t think I’ll ever match the output of my friend Steve Breyer. But he is a wonderful teacher — completely wrong about everything he thinks about law — but a dear friend and a wonderful teacher.
McLaughlin: And on that note, I will thank you for being gracious with your time today.
Gorsuch: Thank you very much for having me. I really appreciate it and thank you guys too.
