Jefferson’s Guidance on SCOTUS Nominee

By Monty Pelerin  /  EconomicNoise.com

This evening President Trump will announce a Supreme Court nominee. The long-departed Thomas Jefferson’s wisdom is worth revisiting when evaluating the nominee. Hopefully Jefferson’s guidance was used in Trump’s selection.

Jefferson’s Guidance

Jefferson believed in a limited role for government. He stated its purpose clearly and concisely (emboldening added):

The purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors.

Trump’s campaign was built on the highlighted parts. Whether he can govern accordingly is as yet unknown.

The Naming of a Supreme Court Nominee Should Be Non-Event

In a perfect world, the naming of a Supreme Court nominee should be a non-event, ranking right up there with the naming of a new dog catcher or county clerk.

The job is relatively straightforward — interpret the clearly written words in the Constitution and prior legal precedents. Elite legal scholars abound and should have no trouble doing either.

Unfortunately, politics has corrupted the selection of candidates.  The world, including that of jurisprudence, is imperfect. Everything has become political and everyone has become politicized.

Political World

Honor and integrity rank behind power and office in politics. Both political parties are guilty pursue power and office at the expense of honor. That is why it is easier to predict the reaction to tonight’s nominee than his/her name. One political party will be happy; the other will behave as if the world is coming to an end.

The Founding Fathers understood the nature and danger of power. They reviewed thousands of years of history. In almost every instance government, regardless of place or form, grew ever more powerful. Ultimately government destroyed civilization or civilization destroyed government. The Supreme Court nominee will play a small part in whether government or civilization triumphs.

Monopoly power is granted to government by necessity. Constraints to limit the growth and abuse of this power are difficult to impose. The Founders provided the Constitution which Joseph Sobran described as an antitrust act for government. Sobran’s interpretation was in line with Jefferson’s:

In matters of Power, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.

Jefferson was a realist attempting to deal with an imperfect world.

The Supreme Court

The Constitution was a beautiful document. It represents a noble attempt to constrain government from abusing its power.

The Supreme Court was to be the final arbiter between the Constitution and political legislation. Conflicts  were to be decided by them. The Court was to ensure that lower court and political decisions were within the “antitrust” constraints of the Constitution.

The Founders allowed for changes to the Constitution but deliberately made such change politically difficult. When the Constitution could not be changed via the legislative process, a way to skirt the Constitution was sought. In sports, the analogy would be the following: if you can’t win the game, bribe the referees to tilt it in your favor.

The referees were the Supreme Court justices. If their interpretation of what the Constitution meant and not what it became key, the the Constitution could be diminished if not destroyed.

Enter political tests as a substitute for legal qualifications.

As the Supreme Court became politicized, the Constitution began to lose its meaning. It began to be interpreted in whatever way pleased the political appointees to the Court.

Democracy

Without the Constitution, we are reduced from a Republic to a Democracy. Democracy without constraints devolves into a situation where the minority is always bullied by the majority. Jefferson and other founders recognized the dangers of democracy:

A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.

I think it was P. J. O’Rourke that colorfully described democracy as two wolves and a sheep voting on what to have for dinner. Unconstrained democracy allows government to grow and become more powerful. Voters quickly learn they can vote themselves benefits and politicians are eager to accommodate in exchange for votes. That condition signals the downhill stage of the country.

Jefferson’s Guidance

Thomas Jefferson was no idealist dreamer. He understood that dishonorable men would try to bypass the safeguards put in place. His view was that they would eventually succeed which prompted observations like the following:

Every generation needs a new revolution.

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

The Critical Issue

Appointments to the Supreme Court should not be important in a perfect world. That is no longer the case (if it ever was). There is no better way to put the importance of a Supreme Court nominee into perspective than that stated by Myron Magnet:

What’s at stake in the confirmation of new Supreme Court justices is therefore as momentously political as the 1787 Constitutional Convention: are we to be a self-governing republic, or are we to be ruled by arbitrary, unelected bureaucrats, who think themselves wiser than we, the people of the United States? 

Donald Trump’s election, weird as it might have seemed, was perceived to be a referendum on Mr. Magnet’s quote. He ran against the establishment — Democrat and Republican. He ran on returning power to the people. In a sense he embodied this quote from Jefferson:

One man with courage is a majority.

There is no better litmus test as to Trump’s sincerity of purpose than the quality of tonight’s nominee. Trump’s political future and the country’s future may well depend on his nominee.

http://www.economicnoise.com/2017/01/31/jeffersons-guidance-supreme-court-nominee/

More great articles here: http://www.economicnoise.com