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Source link: http://archive.mises.org/12450/our-founders-supreme-court-litmus-tests/

Our Founders’ Supreme Court Litmus Tests

April 12, 2010 by

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.


Ohhh Henry April 12, 2010 at 3:57 pm

Unfortunately the founding fathers put their trust in a coercive monopoly in order to protect Americans’ rights and liberties, with an unhappy result.

DD April 12, 2010 at 4:53 pm

“Unfortunately the founding fathers put their trust in a coercive monopoly in order to protect Americans’ rights and liberties, with an unhappy result.”

Founding fathers didn’t do any such thing. They formed a government with the power to tax and regulate. It was self-contradictory from the start before even the first judicial interpretation of anything. The future of the liberty movement is very dark if it doesn’t get past this mythical piece of paper. It really isn’t worth the time to always rant about how nobody cares about the Constitution. It’s pathetic and it isn’t true.

Fritz April 12, 2010 at 5:25 pm

I wonder if Washington said that before or after he sent the militia across the country to collect taxes? The inventor of “voluntary compliance” perhaps?

Ohhh Henry April 12, 2010 at 6:15 pm

They probably thought the people wielding the power would be “reasonable” in its application, as they assumed that they themselves were “reasonable”. I.e. would tend to use the power for the greater good and not for selfish gain.The Canadian charter of rights and freedoms didn’t even bother to come up with high-sounding, absolute guarantees of liberty, they revved up the truck and drove a huge hole through the thing right in the beginning.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Government will decide when you’re not free, because they’re “reasonable”, and it’s a free society (?) and hey, you voted to lose your rights, or at least somebody voted for it, so get over it.

After this it’s all down hill so to speak, and the rest of the document is basically a list of the number of ways in which all rights and freedoms, especially the ones it refers to as “fundamental”, can be violated by legislatures and courts.

Guard April 12, 2010 at 8:33 pm

I once read a book in which the author stated that we do not have the right to force our opinions on others, and then on the very next page suggested voting for a bunch of laws that would do exactly that.
Many of these quotes represent the same kind of government doublethink. Talking freedom while setting up a coercive government.

RWW April 12, 2010 at 8:34 pm

I don’t know about the rest of the holy Fathers, but Washington, Madison, and Hamilton were scum.

Gil April 12, 2010 at 9:33 pm

‘Holy Fathers’, indeed! Why does resorting to the “What Would The Founding Fathers Want” resonate so well that every person in the U.S.A. of different political stripes use it every once in a while? Those guys were like any other in that they didn’t practice very well what they preached. (It’s even said Patrick “give me liberty or give me death” Henry imprisoned his wife in the basement because he considered too crazy). The mere fact they were slave-owners while talking of concepts of justice, freedom, etc., pretty much sinks the debate from the beginnings. The notion that the nobility should be free while everyone else should be seen but not heard is merely adopted the British system they supposedly fought off. If anything it would prove the ‘Revolution’ was fought to merely create a homegrown government where the taxes ‘stay at home’ as opposed to a new and different system.

S. Reiber June 18, 2010 at 9:26 am

The founding fathers of America were certainly not scum since a great number of them were professing Christians and all pledged their life, fortunes, and sacred honor at great personal risk in order to, in God’s providence, give birth to this nation. This is not to say they were perfect and this does not miss the point that they lived in a certain time in history and were influenced by this both good and bad. As you judge them be sure to realize that, Lord willing, people will judge this generation 200 years from now and will find that we killed about 1.5 million innocent babies in the womb per year; that we steal and promote covetousness each person against their neighbor on a national basis; And many other such faults — which our founding fathers did not do. Or if one were to compare the American war for Independence as a return to Constitutional Government assuring form and freedom, as compared to say, the French Revolution with its wholesale theft, murder, atrocities — and what was even worse that which followed, Napoleon! Obviously the Christian based government by law, not by men, with liberty and justice, was vastly superior. Such ignorant dismissals of the Founding Fathers displays a failure in both ethics and history.

billwald April 12, 2010 at 9:15 pm

Chief Justice John Marshall: The Constitution says what we say it says.

Dick Fox April 13, 2010 at 8:58 am

Anarchy is alive and well with the unreasonable. I wonder how many of you tearing down the principles of the founding of our nation would refuse to call a cop if your home was invaded?

Nate April 13, 2010 at 9:51 am

Dick Fox,

The funding of the police system through exploitative taxation seems perfectly reasonable to me.


Magnus April 13, 2010 at 2:23 pm

My home is invaded regularly by people calling themselves my “government.” They knock their filthy mafioso mitts on my door all the time collecting payments from me on a debt I never agreed to pay.

They call it “taxation.”

You could try calling a cop to get that rampant spree of theft to stop, but the problem with that response is that the cops are paid by the proceeds of the theft. As a result, they are less than helpful or sympathetic.

mikey April 13, 2010 at 11:48 am

Why has freedom become such a hard sell?

Magnus April 13, 2010 at 2:18 pm

Because most people don’t want freedom. They prefer to receive the benefits of an institutionalized system of theft that gives them a cut of the loot.

Frank April 13, 2010 at 10:14 pm

If you cherry-picked and edited quotes like this, you could probably make today’s politicians sound pretty libertarian, too.

tungsten watches July 24, 2010 at 4:14 am

“Unfortunately the founding fathers put their trust in a coercive monopoly in order to protect Americans’ rights and liberties, with an unhappy result.”fortunes, and sacred honor at great personal risk in order to, in God’s providence, give birth to this nation.
The mere fact they were slave-owners while talking of concepts of justice, freedom, etc., pretty much sinks the debate from the beginnings.

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