Since news broke that Supreme Court Justice Antonin Scalia had died Saturday, people have buzzed about whether President Obama would nominate a replacement (he will) and whether the Senate will confirm a nominee (they won’t.) While this will sound a little dramatic, the truth is that this pick has the potential of changing the shape of the nation.
The truth is that past liberal courts haven’t cared about the text of the Constitution. Whether you agree or disagree with Roe v. Wade, the Supreme Court didn’t have the authority to decide that lawsuit. It wasn’t a federal issue. State legislators and governors should have been given time to figure out how their state wanted to deal (or not deal) with the issue. There was nothing in the Constitution that said this was a constitutional issue or a federal issue.
That being said, if the federal government wanted to get involved, Congress, not the Supreme Court, should have dealt with or not dealt with the issue. That’s because it’s a political issue to be dealt with in the political arena. It isn’t a judicial issue until legislation is written and a bill is signed into law. The fact is that the Warren Court didn’t respect the principle of federalism because that court didn’t respect the states. Too frequently, the Warren Court saw the federal government as the sole authority on issues.
That belief stands in contrast with the Founding Fathers’ beliefs. The Founding Fathers believed that states, local units of government and individuals should make the vast majority of decisions. That’s the underlying principle behind federalism. That’s the essence of the Tenth Amendment, which states:
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.
It’s often said that states are the “laboratories of democracy.” State legislatures and governors are the innovators. They’re often the best place to resolve issues. Lest we forget, though, the Tenth Amendment finishes with the phrase “or to the people.” The Founding Fathers understood that some things can’t be fixed by government. That’s why they included that final phrase.
In the past, liberal courts haven’t seen fit to rule that the Second Amendment didn’t apply to individuals. They’ve argued that it applied exclusively to militias. Then liberal lawyers argued that the Second Amendment is essentially void because we aren’t protected by militias anymore.
The next justice will either decide that the people who wrote the Constitution thought things through, debated the pros and cons of each provision in the Constitution, then voted on whether each provision was worthy of being included in the Constitution and the Bill of Rights.
The Founding Fathers didn’t deal with trendy things. They wrote the Constitution to stand the test of time. They wanted to make it impossible for a dictator to control the nation. That’s why they insisted on including checks and balances into everything they put into the Constitution. They understood the value of deliberation and negotiation. They understood the importance of placing limits on government, too.
The Warren Court and, to a lesser extent, the Rehnquist Court issued rulings that allowed government to overrule the wishes of the governed. The last thing freedom-loving people should want is a nation ruled by the judiciary. Far too often, the Supreme Court created rulings from their imagination. Such is the case with Wickard v. Filburn.
At issue in Wickard v. Filburn was whether Congress could “regulate the production of wheat intended for personal use and not placed in interstate commerce” and whether “Congress could regulate trivial local intrastate activities that have an aggregate effect on interstate commerce via the commerce power.” The Supreme Court ruled that Congress could regulate farm production even if those products never crossed from one state to another. In fact, that court ruled that the federal government had the right to regulate crop production even though the crops never left the farmer’s land.
There’s no justification for the federal courts to get involved because this was a local issue. Prior to this ruling, the federal government only used the Interstate Commerce Clause to regulate commerce that left one state and went to another state. Wickard v. Filburn opened the floodgates that provided the precedent for other federal intrusion into matters that were supposed to be dealt with at the state level.
Justice Scalia was a giant intellect. It’s indisputable that he’ll be considered one of the greatest jurists in the history of the United States. That’s because he insisted on the concepts of textualism and originalism. Justice Scalia believed that his job as a justice was to determine what the Founding Fathers wanted and what the people who drafted legislation intended.
Generally speaking, liberal jurists like Stephen Breyer only worry about finding a rationalization for implementing their world view. That’s why they should’ve been politicians, not jurists.