Antonin Scalia is dead. Will the Constitution die with him?
The passing of this conservative Supreme Court Justice has set off a political firestorm in a year already burning with conflict. GOP Senate leader Mitch McConnell is vowing not to consider an Obama-nominated replacement. He prefers to wait until after the election when he hopes a Republican will occupy the White House. GOP presidential candidates echo his call. But if they’re true friends of freedom, they will tie this appointment to what should be the central theme of the election: the restoration of the Constitution.
For many years, the Supreme Court has been balanced, with four left-liberals, four sort-of conservatives, and a swing vote—usually Justice Anthony Kennedy. It’s an imperfect balance. For example, Chief Justice John Roberts, a conservative, twice upheld Obamacare for reasons more in accord with an anything-government-does-goes ideology. Scalia was the intellectual anchor of the conservative wing: with him gone, the balance is gone, too.
Scalia’s replacement is now a major election year issue. Democrats argue that it is the president’s duty under the Constitution to make this appointment and that the Republicans would be “obstructionist” and “playing politics” by not allowing the Senate to vote on his choice. But during George W. Bush’s administration, Democrat Sen. Chuck Schumer argued against having hearings for that president’s court nominees. Republican Sen. Marco Rubio argues that a lame duck president should not nominate a court replacement. But if the president were a Reagan, Rubio would likely argue differently. Rubio’s lame “lame-duck” argument ignores the key idea that friends of freedom should make the defining issue of this election.
America’s Founders were clear in the Declaration of Independence that we are each endowed “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men.” But they also understood that government is the greatest threat to liberty. Thus, they wrote a Constitution with checks and balances, federalism, and a Bill of Rights to restrain government.
But over the past century those individual liberties have been eroded as government has grown in scope and size beyond the purpose of the Constitution. The system is now a corrupt, crony mess. Indeed, we can ask the question, is the U.S. government still morally legitimate? Is it time for revolution? There is still a democratic process, however imperfect, by which government can be reformed without resort to arms. And as a practical matter, fighting would simply leave one arrested or dead in any case.
America's Founders understood that government is the greatest threat to liberty.
In recent years, the Supreme Court has stopped some of the worst abuses. Recently, for example, in District of Columbia v. Heller the court struck down government restrictions on the Second Amendment right to gun ownership; Scalia wrote the majority opinion. In Citizens United v. Federal Elections Commission the court struck down government attempts to limit political speech. Both Hillary Clinton and Bernie Sanders have vowed to appoint justices who will reimpose such limits on liberty.
So while the court’s opinions are a mixed bag, were the court to become dominated by leftist ideologues, an important defense of the Constitution would be removed.
All friends of freedom and, especially, Republicans campaigning for president should tie a replacement for Scalia to the broader goal of restoring the Constitutional republic. They should point out to citizens that the Constitution is a document of limited and enumerated powers. Article I, Sec. 8 spells out the powers of the U.S. government. The Tenth Amendment declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Most of what the federal government does today falls outside of its defined powers, but left-liberals on the Supreme Court have ignored this amendment, treating the Constitution as an open-ended grant of power to government.
But most conservatives cannot make a consistent case for the Constitution. They often argue, for example, that many liberties favored by liberals—the right to use birth control, engage in consensual sex, marry who we want, for example—are not in the Constitution. These conservatives ignore the Ninth Amendment, which declares that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” We don’t need to find rights to do as we will, as long as we don’t violate the equal rights of others.
Government must find explicit Constitutional authority to limit our liberties. This understanding of rights also rules out pseudo-rights to things, such as healthcare or housing, that require government to rob some citizens or restrict their liberties to give benefits to others.
The upcoming election could see Hillary or Bernie elected and the Senate go Democrat. In that case, the president could nominate a hard-left advocate of pseudo-rights to replace Scalia. Then there would be no stopping them. It’s a risk.
If Republicans want to head off such a disaster, if they want to pay more than lip-service to the Constitution, if they want to win elections, and if they want to begin to rescue of the republic from ruin, they need to present a vision of a society in which political power is again confined by the limits set forth in the Constitution. That’s the revolution that we need, that will allow individuals again to flourish free of politics.
Scalia's Liberal Streak (Slate.com)
Review of Randy Barnett's Restoring the Lost Constitution
Interpreting the Constitution Contextually
Completing the American Revolution
Edward Hudgins is research director at the Heartland Institute and former director of advocacy and senior scholar at The Atlas Society.
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