Our Founders’ Supreme Court Litmus Tests
Justice Stevens’ forthcoming retirement from the Supreme Court has triggered instant buzz and opposition research in Washington, beginning with the short list passed over for Sonia Sotomayor. But the focus on politics has crowded out almost all discussion of our founders’ intent for America and the implications for interpreting the Constitution that Justices pledge to defend.
Fortunately, we have an extensive record of our founders’ views. But the purposes and limits they believed in, and the litmus tests they applied, are far different than those being discussed today. Consider some of their words:
Patrick Henry: "[L]iberty ought to be the direct end of your government."
James Wilson: "Government … should be formed to secure and enlarge the exercise of the natural rights of its members; and every government which has not this in view as its principal object is not a government of the legitimate kind."
Thomas Jefferson: "A sound spirit of legislation … banishing all arbitrary and unnecessary restraint on individual action, shall leave us free to do whatever does not violate the equal rights of another."
Benjamin Franklin: "An equal dispensation of protection, rights, privileges, and advantages, is what every part is entitled to …"
Samuel Adams: "[W]ithout liberty and equality [under the law], there cannot exist that tranquility of mind, which results from the assurance of this to every citizen, that his own personal safety and rights are secure … it is the end and design of all free and lawful Governments."
John Adams: "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of heaven, they must be made inviolable precepts in every society before it can be civilized or made free."
John Dickinson: [W]e cannot be free, without being secure in our property … we cannot be secure in our property, if, without our consent, others may, as by right, take it away …"
George Washington: "[Government] has no more right to put their hands into my pockets, without my consent, than I have to put my hands into yours …"
Richard Henry Lee: "It must never be forgotten…that the liberties of the people are not so safe under the gracious manner of government as by the limitation of power."
James Madison: "[T]he powers of the federal government are enumerated … it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction."
Joseph Story: "The Constitution of the United States is to receive a reasonable interpretation of its language and its powers, keeping in view the objects and purposes for which those powers were conferred."
Thomas Paine: "All power exercised over a nation…must be either delegated, or assumed…All delegated power is trust, and all assumed power is usurpation."
Alexander Hamilton: "[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid …"
Our founders clearly revealed their central purpose was defending Americans’ rights and liberties against encroachment, particularly by an overbearing national government. The Supreme Court’s major purpose is preventing such overstepping. That requires following the Constitution as the highest law of the land in fact as well as on paper, because as George Mason put it, “no free government, or the blessings of liberty, can be preserved to any people but by… frequent recurrence to fundamental principles.” If we are to be true to our heritage, the coming Supreme Court nomination debate must focus on those principles.