Profile: Todd Gaziano (WV ’83), Heritage Foundation and U.S. Commission on Civil Rights

gaziano

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 75th
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 14th 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 20th 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 14th 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 20th 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.

Comments are closed.