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The Supreme Court Scam

by Harry Browne

For the past year, Republicans have been trying to explain to us small-government advocates why we should vote for George W. Bush. But since Mr. Bush has no plans to reduce government or improve our lives in any significant way, Republicans have had only one argument: he isn't Al Gore. ("You don't want Al Gore in the White House, do you?")

But after seeing the Republican convention -- with its theme, "big government can be compassionate government" -- it turns out that George Bush is Al Gore after all.

Since George Bush loves big government as much as Al Gore does, Republicans have had to find another reason for us to choose Bush over Gore. So they remind us that the next President may select as many as three or four new Supreme Court judges.

"Do you want Al Gore choosing those judges?" they ask.

The Supreme Court is a favorite Republican whipping boy. They blame the court for many of today's ills -- hoping we'll ignore the role of the big-spending Reagan and Bush administrations and the pork-obsessed, over-regulating, power-hungry Republican Congress.

They neglect to mention that Republican presidents appointed seven of the nine judges on the court they love so much to hate. They expect us to jump at the chance to vote for a president who will undoubtedly appoint more judges like Anthony Kennedy, Sandra Day O'Connor, and David Souter.

And they ignore the fact that even their favorite judges -- Clarence Thomas and Antonin Scalia -- often ignore the plain meaning of the Constitution in an effort to impose their own values on America.

Picking a Supreme Court judge

We have bad Supreme Court judges because bad presidents have chosen them. And the court won't be improved by electing another big-government president -- whether his name is Al Gore or George Bush.

Every modern Supreme Court justice decides constitutional questions by referring to something other than the plain language of the Constitution. They invoke "original intent," a "living Constitution," "penumbras," "the greater good," or the "compelling interest" of government. In so doing, they demonstrate that they're unqualified to sit on the Supreme Court.

What should be the proper qualifications of a Supreme Court judge? Should the president apply a litmus test in choosing nominees?

Yes, he should. If I become president, I will ask six simple questions of any potential judge.

The First Amendment says,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And yet, when Congress or a legislature makes a law censoring the Internet, restricting political advocacy, prohibiting cigarette advertising on TV, or barring hate speech, the judges don't strike it down automatically. They deliberate to determine whether the government has a "compelling interest" in regulating speech or the press.

But the First Amendment says, "Congress shall make no law. ..."

It doesn't speak of the government's "compelling interest" or provide for any exceptions or qualifications. It says very simply, "Congress shall make no law. ..."

No law.

So the first question I would pose to any potential Supreme Court judge is:

1. Can you read?

If the prospect can pass a reading test, we can move on to the second question:

2. What do the words "Congress shall make no law" mean?

The Second Amendment says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Again, no exceptions or qualifications are given. So my next question is:

3. What do the words "shall not be infringed" mean?

And on from there:

4. Do the thousands of gun laws now on the books infringe in any way whatsoever on the "right of the people to keep and bear arms"?

The Ninth Amendment says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Nowhere in the Constitution is the government given the power to take away your right to privacy, your right to defend yourself, your right to keep your property, your right to choose your own retirement program, or in fact any other right.

So my next question is:

5. What rights do the people no longer have, and where in the Constitution were those rights taken from the people?

The 10th Amendment says:

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.

My final question will be:

6. Where in the Constitution was it delegated to the United States government the power to interfere in education, health care, law enforcement, welfare, charity, corporate welfare, or any of the many other areas that form a part of today's overbearing, over-regulating, over-expensive federal government?

These six questions will tell me all I need to know about the kind of judge a potential nominee would be.

Plain English

The Constitution isn't written in Chinese, Swahili, or Esperanto. It is in plain English. We don't need anyone to translate or interpret for us. It isn't even necessary to study the history of the adoption of the Constitution, since there's nothing mysterious about its words.

Phrases like "make no law" or "shall not be infringed" or "retained by the people" or "reserved to" are comprised of everyday words that require no search for "original intent" or "penumbras."

The Constitution means what it says it means -- or it means nothing at all. And any judge who overrules the plain English of the Constitution is no judge at all -- whether he's been appointed by a Republican or a Democrat.

Will either Al Gore or George Bush choose judges on the basis of their respect for the plain words of the Constitution?

Of course not. They both believe in big government. They both believe your leaders know what's best for you.

Neither of them thinks of you as a sovereign individual with inalienable rights he should leave alone. And neither of them intends to have his grand plans for a Brave New World derailed by the plain words of the Constitution.

Al Gore doesn't want a Supreme Court judge who will strike down his vision for federal pre-school programs. George Bush doesn't want a judge who will strike down his vision of federal school vouchers.

Neither of them wants judges who will keep him from meddling in education or violating the Constitution in any other way. Quite the contrary.

So why should you think you'll be any freer with a Bush Supreme Court than one selected by Al Gore? Do you believe George W. Bush -- who hasn't proposed a single reduction in big government -- is determined to keep the government's nose out of your business?

I don't think so. He can't wait to get his hands on the reins of power so he can use your tax money to promote his favorite charities. He can't wait to impose his concept of a good society on you.

What Do You Want?

Do you want smaller government?

If so, you will never get it so long as you support those who are making government bigger. You will never get it by inventing excuses to vote for those who are working to make government more expensive, more intrusive, more oppressive.

If you vote Republican or Democratic, you're giving up. You're saying there's no hope you'll ever be free, and so you're just going to make the best of a bad bargain -- by voting for the person who will take you to Hell at the slowest rate.

If you want freedom, you must vote for freedom -- not for big government. When you do so, you may not get what you want this year. But you're paving the way to get freedom in your lifetime -- and maybe even in this decade.

But with the Republicans and Democrats, you'll never get what you want. Instead, you, your children, and your grandchildren will face an ever-larger, more intrusive government.

To get freedom, you have to vote for it -- for candidates who are unconditionally for smaller government, with no exceptions and no excuses.

Harry Browne is running for President of the United States as a Libertarian candidate in 2000.  More of his articles can be found at