21 de outubro de 2019
First, this is not a memoir. Many readers who want the details of Gorsuch's selection and confirmation at the Supreme Court will not be pleased (this was not my case). There is a bit of your personal life written subtly. And what was retold turned out to be delicious, like a fun episode with an enthusiastic fisherman (son of Queens - NY), Judge Antonin Scalia, who appears in an exciting photo of the two, a Supreme Court judge and their future successor.
Well, Judge Neil Gorsuch in his new book vigorously explains and supports textualism / originalism. This is already indicated by the title he chose for his book: A Republic, if you can keep it. These were the words of Benjamin Franklin in explaining what the Constitutional Convention had created. The essence of originalism for the survival of the Republic, writes Gorsuch, arises from the separation of powers. If judges abandon their constitutional role of simply interpreting (though often not so simple) what the political branches have done, they will assume the roles that the other branches must play (which is not insane but highly inadvisable).
Gorsuch said the book is for general citizens, not academics (perhaps this reflects the author's ability to explain complex topics extremely easily). He wants to revive and encourage "the interest in the constitution of the authors' project and the judge's role in it." Even with that in mind, the author gives much to those who know the meaning of the expressions (especially to all who were orphaned by Judge Scalia's premature farewell in 2016). A significant portion of Gorsuch's book reprint speeches, court opinions, and other earlier writings, with some new questions interspersed throughout the text.
The book is divided into only seven chapters. In most of them, there are previous writings of the author, including long passages of judicial opinions. He analyzes the importance of the separation of powers in one chapter and of originalism and textualism in another. A chapter on the "art of judging" focuses on the need for courage to pursue the right outcome, not the comfortable and easy one. He argues that good intentions led to the worst decisions of the Supreme Court, such as Dred Scott, who found constitutional protection for slavery in 1857, and Korematsu, who in 1944 found no constitutional barrier to imprisoning American citizens during the war if their home country, Japan, started a war with the United States. He argues convincingly that both decisions resulted from the Supreme Court's search for what appeared to be the best political outcome of the day, rather than applying the clear language of the Constitution.
Gorsuch's writing style is extremely pleasing - he has the right temperament to write about difficult subjects very easily (this can also be seen in Supreme Court rulings), while many others follow the opposite. He leaves his descriptions of legal debates with other aspects, such as, after admitting that letting the courts update the constitution to achieve the best results was not "completely insane," saying that many things may not be insane, but are still advised against. Score. that he usually does for his teenage daughters.
In addition to using originalism to interpret the constitution, Gorsuch promotes textualism, to interpret statutes. Both approaches rely on the words of the relevant text, as they would have been understood at the time of their creation. He acknowledges that these tools do not always provide a clear answer. Reviewing a quote from Churchill on democracy as a form of government, he says that at least originalism "is the worst form of constitutional interpretation except all the others." Provides considerable determination; as far as humanly possible, it leaves out of the judicial analysis the political wishes of judges; allows compromises inherent in the form of government to be maintained - Congress decides what the bylaws should do, and the difficult method of amending the constitution remains the only way to make revisions. Recently, and surprisingly, the fact that judges got rid of such texts became apparent when a lawyer in his oral argument dismissively stated that the only thing the other side had to support his position was statute, while his side had jurisprudence.
His book on originalism / textualism comes two years after his confirmation victory. Judge Gorsuch wrote a temperate book, with civility demonstrated to all. Such a stance, however, does not reduce the fervor with which it calls on the United States to remain a republic. I hope this book is reprinted and translated in other countries as well, the chaos in legal interpretation has spread all over the world.