For this interview, Todd Gaziano (WV ‘83), Director of the Center for Legal and Judicial Studies at the Heritage Foundation and Commissioner on the U.S. Commission on Civil Rights, was interviewed by Bill Rivers (DE ‘09).

Gaziano has worked in all three branches of the federal government. He served first as judicial law clerk to the Honorable Edith H. Jones, United States Judge for the Fifth Circuit Court of Appeals. Gaziano later worked in the Office of Legal Counsel in the Justice Department, where he helped provide legal advice to the President, Attorney General, and other Cabinet secretaries.  As Chief Counsel to the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, he worked closely with Chairman David McIntosh on government-wide regulatory reform legislation and regulatory agency oversight. A John M. Olin Fellow in Law and Economics, he received his J.D. from the University of Chicago Law School.

As Director of the Center for Legal and Judicial Studies at the Heritage Foundation, Gaziano focuses on issues relating to the separation of powers, the role of the courts, civil rights, and Supreme Court jurisprudence, working closely with the Edwin Meese, the 75^th Attorney General of the United States. In addition to these duties, in early 2008 Gaziano was appointed by the House of Representatives to serve for six years on the U.S. Commission on Civil Rights.

Bill Rivers is a recent graduate from the University of Delaware, where he studied International Relations and History. A member of Phi Beta Kappa and a 2010 Simon Fellow, he currently directs marketing and fundraising for Water Is Life-Kenya, (www.kenyawaterislife.com) a Delaware-based non-profit dedicated to developing clean, sustainable water resources in Southern Kenya.

Your family has a unique history with the Truman Foundation, doesn’t it?

I was only the second Truman Scholar from West Virginia University. Several more were selected from WVU in the next five years, including two of my relatives—my first cousin, Anthony Majestro, and my younger brother, Thomas Gaziano. My brother Tom also went on to win a Rhodes Scholarship and now teaches at Harvard Medical School. The Truman Foundation will always have a very special place in our family.

One of the core principles of the Truman Foundation is a commitment to public service. You’ve worked in all three branches of the federal government. What have you learned from that experience?

It’s been incredibly interesting and helpful to have worked in all three branches, especially for someone who studies the separation of powers. Except for three years I spent at a law firm in Houston, my entire career has been either in direct government service or at a think tank focusing on law and public policy.

The Justice Department’s Office of Legal Counsel is the principal defender of the President’s prerogatives vis-à-vis the other branches. It also settles many internal, executive-branch legal disputes, including any legal issues the President wants resolved. It’s a great job because it includes both providing legal advice (including to the President) and serving as an executive-branch court of last resort. Later, when I was a House counsel, that experience was incredibly helpful in conducting executive-branch oversight. In short, defining and defending executive power helps show where its limits lie.

Moreover, both of those jobs have been quite valuable in the work I’m now doing on the Commission on Civil Rights. The Commission is directed to investigate and report on civil rights enforcement policy to Congress and the President. Congress and the President also each appoint half the commissioners, so it’s important to understand the perspectives, prerogatives, and priorities of each branch.

Civil Rights seem to be a long-standing focus of your career. You also grew up in West Virginia. What influence, if any, did your home state have in shaping that focus?

My father was in the first generation born in America of impoverished, Sicilian immigrants. Discrimination against Italian Catholics from 1935-65 in southern West Virginia coalfields was strong. It wasn’t as bad as that against African Americans, but the bias he faced was not subtle. Nevertheless, my grandparents taught my father and his siblings that, no matter what level of societal discrimination or their lack of wealth, they could succeed in America and that it was their destiny to do so.

The civil rights struggles were quite different in that era than today, but I think more people should try to teach a similar lesson to their kids despite the current societal struggles. My father went from the young son of parents who spoke Italian at home to one of the most respected physicians in West Virginia. It’s important for us to teach our children that they are still largely responsible for their own success—regardless of the type of discrimination that still exists.

Where is America on the question of Civil Rights today?

Landmark Civil Rights legislation was enacted in the 1960s which helps guarantee equality of opportunity. Since then, the argument intensified about whether society needed to be more concerned with equality of opportunity or equality of results. Although some think we can pursue both without conflict, a conflict soon emerges with government’s efforts to do both. If the government steps in to try to ensure equality of results among different racial, ethnic, or other groups, it necessarily interferes with the equality of opportunity for all of them. And sometimes public policies that try to address a disparate impact in a particular way not only interfere with the equality of opportunity, but they make the underlying problem worse. The law of unintended consequences is an unforgiving force.

It’s wonderful, however, that it no longer takes courage to condemn open, blatant racism. This wasn’t always the case. Racist statements are immediately condemned these days. Comedians and politicians lose their careers over them. And they should. The public change in attitudes and the rapid increase in interracial dating and marriage shows how much progress we have made.

We’re still trying to live up to the promise of the 14^th Amendment, and we still have a way to go. But there are other threats today to our individual liberty; some of them come from a government that not only interferes with them directly (like screening at airports) but may interfere with our economic opportunities indirectly.

Let’s talk about the courts. In the beginning of the Republic, most of the federal government’s power seemed to be held by the legislative branch. In the 20^th century, that seemed to shift to the executive. Is there now a shift of power underway in the federal government toward the judicial branch?

All three branches of the national government have grown in power and influence over the lives of Americans. The federal courts’ power has grown in proportion to the rest of government, and some of that has been necessary and for the good. The historic desegregation decisions of the 1950s and 1960s are an example. The courts’ persistent enforcement of the 14^th Amendment’s guarantee of equal protection was necessary during the ugly period of massive resistance.

But once they began to exercise extraordinary remedies, including some controversial integration decrees, it became attractive for activist groups to urge the use of those same powers for more questionable ends. At about that same time, some legal doctrines that tended to encourage judicial activism, unmoored from the text and original public meaning of the Constitution, were gaining currency. This and the growth of the federal government generally led the courts to assume even more power.

While there’s hardly an issue the federal courts won’t decide now, at least there is a healthy trend back to a more careful interpretation of the Constitution that relies more on the text and its original public meaning.

You’re saying there’s been a trend toward Originialism?

I think so. The issue got an incredible public boost twenty-five years ago with a series of speeches on originalism that then Attorney General Ed Meese gave. Those talks helped launch a debate that re-invigorated that school of thought. The Heritage Foundation just celebrated the anniversary of those talks with a symposium of scholars at the Supreme Court with General Meese and Justice Alito. Today, regardless of legal scholars’ personal positions on textualism or originalism, its hard to deny that they are serious, mainstream approaches to constitutional interpretation.

Just look at the Supreme Court’s use of originalism in the landmark Second Amendment cases of the last five years. In DC vs. Heller, the question was whether the Second Amendment protected only the rights of state militia to keep and bear arms or the right of all Americans, regardless of service in a militia. Both sides engaged in a serious parsing of the text and a discussion of its original public meaning. Regardless of what the justices thought the right historical answer was, none of them were willing to say that the text or its original public meaning was irrelevant.

I’d like to switch gears for a minute and talk about the legal profession, especially as it relates to starry-eyed, newly minted Truman Scholars. There is a popular understanding now that recent college graduates, if unable to find a job, can always apply to law school. The thinking goes that a JD is a great thing to have, even if you never use it.  Is this true?

I don’t recommend law school to everyone regardless of interest, but I do recommend it to a lot of people. Assuming you have sufficient interest in the type of subjects studied in law school, it’s a great interdisciplinary degree. I thought it was a fascinating course of study that combines some of the wisdom of the ages from history, sociology, economics, political science, linguistics, and rhetoric.

Law school is also really good training for the mind. Lawyers are taught to spot issues in a particular way before they try to come up with the right answer. It teaches you to distinguish between relevant and irrelevant facts in prior cases. What differences are immaterial? Why? In hard cases, there is no easy answer. Law school focuses on the hard cases, and that really trains the mind in a manner that is useful in many fields.

It’s also a very versatile degree for other reasons. Besides a lot of specialties in legal practice, it can be helpful in business, government, public policy, the nonprofit world, teaching and more. It allows you to change your career plans.

Lastly, it’s about the easiest doctorate degree to obtain. My four brothers are MDs. They had to work harder and study longer than most of my lawyer friends.

An overwhelming majority of members of Congress, both past and present, have been lawyers. And it makes sense for legislators and members of the judiciary. But a large number of America’s Presidents have been lawyers as well. Does legal training impart executive capability?

It’s certainly not necessary for the Presidency. Ronald Reagan is among the highest-rated presidents in the 20^th Century, and he wasn’t a lawyer. What he did have though was a strong understanding of and appreciation for the Constitution. I think that’s vital for anyone in government. Kennedy is another popular, non-lawyer President from the last 50 years. Carter and Johnson were non-lawyers with questionably legacies. And Nixon and Clinton were lawyers who were both impeached. In my lifetime, there is no obvious correlation between legal training and presidential performance.

Is our American political system, courtesy of our Constitution, exportable?

Certainly there are important lessons and virtues that are exportable. Few countries have the same free speech protection we do. Not even England has as strong protections for speech. I think more countries ought to follow our lead. And that would have a significant impact on the government itself. If citizens are free to harshly criticize their government, they not only enjoy that freedom but it will tend to lead to better and more democratic government.

As a quick aside, it will be interesting to see if the Peoples Republic of China can continue to suppress political freedoms as it allows more economic freedom. People with economic freedom and the information necessary for global market power will want more political freedoms, but soldiers with tanks and guns exercise their own persuasive power.

Speaking of criticizing government: Is the President’s healthcare plan constitutional?

The individual mandate is clearly unconstitutional if we are concerned with the original meaning of Congress’s commerce power. Yet, Congress and the Supreme Court have read the commerce power much more broadly than the framing generation understood it to be. Under current judicial precedents, it’s a much closer call, but I still think the Supreme Court will strike the individual mandate down. There are several reasons, but I’ll mention two simple ones.

The first is that the mandate truly is unprecedented, which means there is no controlling judicial precedent for it—regardless of some claims to the contrary. Congress has never before attempted to require Americans to buy a particular product or service, even when the nation’s existence was at stake. For example, Americans were never required to buy war bonds in World War I or II.

Second, the Supreme Court has always been clear, even when it has approved a very broad exercise of commerce power, that there are some limits.  If Congress can regulate people for not purchasing something because staying out of the market would affect the market (even if that is so), then it can do anything. If the Court were to adopt that theory, it would be adopting a chaos theory of the commerce clause, one without any limits. I don’t think the Court will do that.

It’s the equivalent of requiring Americans to buy a new GM car every year. You wouldn’t even have to drive them. You could keep them all in front of your house. But every year, a family of four would have to buy a new car of a particular brand with particular equipment in order to stimulate the car market and to avoid certain transportation “externalities.”

I explained the constitutional arguments in a lot more detail in a paper I co-authored last December (see http://s3.amazonaws.com/thf_media/2009/pdf/lm_0049.pdf) which I am happy to learn was entered in the Congressional Record during the healthcare debate. (Every think tanker hopes that will happen with their scholarship occasionally.)

Now, if the Supreme Court strikes down the individual mandate, there is a question whether the rest of the legislation fails. The court would have to engage in a severability analysis. That’s an even tougher issue, but I think the sponsors of the Obamacare bill, including Senator Bauchus, made it clear the act couldn’t survive without the individual mandate.

The healthcare debate really seems to have been an issue that helped make the Tea Party a household name. What do you think of the Tea Party?

One encouraging aspect of the rise of the Tea Party is the participants’ hunger for knowledge about the Constitution. Some have wacky ideas about it. Some have rather impressive ideas and knowledge. It’s an important opportunity for all of us to help inform and educate Americans on the Constitution.

I also think the Tea Party movement is going to be part of a long-term trend, especially as concern over the scope and financing of government continues. Whether you believe in large government or think that government’s size should be reduced, the problems in Greece and Ireland suggest that paying for government entitlements anywhere near those that exist now is a very serious problem. And that often raises constitutional issues.

This age may be analogous to the Progressive Era, only with the opposite effect. Many early progressives in the academy thought constitutional doctrines limited the scope of national government to solve problems they thought were pressing. I think the opposite instinct is emerging today. The constitutional doctrines of today may be enabling a leviathan to trample the protections for liberty the framers enshrined in the Constitution.

What do you enjoy most about your job as Director of the Center for Legal and Judicial Studies?

I especially enjoy organizing practice argument sessions for many of the advocates who are going to argue cases before the Supreme Court. In a given Supreme Court term, we might organize a practice “moot court” for about a dozen of the seventy or so cases the Court will decide. These are often some of the most important cases. We try to bring together the best Supreme Court advocates to help those who have never argued before the High Court. It’s always an interesting challenge. And there have been times when our guest advocates have told us they believe our preparation session made the difference in their winning the case.

Bill Rivers (DE ’09) currently directs marketing and fundraising for Water Is Life-Kenya, (www.kenyawaterislife.com) a Delaware-based non-profit dedicated to developing clean, sustainable water resources in Southern Kenya.