A Supreme Court Litmus Test from Our Founders

Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

As the March 20 start of confirmation hearings for Neil Gorsuch approaches, Americans have been hearing about litmus tests. For instance, Sen. Charles Schumer, D-N.Y., and Rep. Nancy Pelosi, D-Calif., have set up a standard of “being mainstream” in their eyes and respecting precedents they like, ignoring whether they violate the Constitution.

However, there is a far more relevant litmus test – our founders’ views of American government under the Constitution justices pledge to defend. They are worth reviewing as a primer for where attention should focus on any nominee for the Supreme Court.

Samuel Adams: The liberties of our country, the freedom of our civil constitution … it is our duty to defend them against all attacks … to maintain the rights bequeathed to us.

Patrick Henry: Liberty ought to be the direct end of your government.

Thomas Paine: A constitution is not the act of a government but of a people constituting a government … . All delegated power is a trust, and all assumed power is usurpation.

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.

Benjamin Franklin: An equal dispensation of protection, rights, privileges and advantages, is what every part is entitled to.

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.

John Dickinson: We 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.

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. …“Thou shalt not covet” and “Thou shalt not steal” … must be made inviolable precepts in every society before it can be … made free.

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: The powers of the federal government are enumerated … it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.

John Taylor of Caroline: Every innovation which weakens the limitations and divisions of power … makes [government] strong for the object of oppression.

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.

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.

James Otis: An act against the Constitution is void.

George Mason: Flagrant violations of the Constitution must disgust the best and wisest part of the community.

Mercy Otis Warren: Any attempt [to] subvert the Constitution … cannot be too severely censured.

Our founders clearly revealed their central purpose was defending Americans’ rights and liberties against encroachment, particularly from overbearing government. That is the Supreme Court’s primary function. Therefore that should the central litmus test focus in evaluating Judge Gorsuch, as well as any other nominee, to the court tasked with preserving and protecting the highest law of the land.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include “Lines of Liberty” (2016), “Faulty Premises, Faulty Policies” (2014) and “Apostle of Peace” (2013).

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