Klukowski: Justices Gorsuch's and Scalia’s Legacy on Independence Day


ACRU Staff


July 6, 2017

This column by ACRU General Counsel Ken Klukowski was published July 4, 2017 by Breitbart.

President Donald Trump set a high bar when he promised to nominate a successor to Justice Antonin Scalia who would fill the shoes of the conservative lion. Last month’s decisions proved Justice Neil Gorsuch is indeed an originalist in the mold of Justice Scalia whom all Americans can celebrate this Independence Day, though it will take years for the newest justice to set forth all the nuances of his legal philosophy.

On July 4, 1776, leaders from thirteen British colonies in North America called upon God to protect them through his divine providence and pledged their lives, fortunes, and sacred honor to create a democratic republic separate from the United Kingdom. The United States would experiment with two versions of self-government, which would finally come to fruition in 1789 with the ratification of the Constitution, the first elections under America’s permanent form of government and the drafting of the Bill of Rights (which was later ratified in 1791).

But it all started with a Declaration of Independence, which set forth the principles of self-government and the legitimizing reasons for government in these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such a form, as to them shall seem most likely to effect their Safety and Happiness.

Americans have been unpacking principles found in these words for centuries. They include: (1) There is a transcendent Creator who creates all humans equal. (2) God confers certain rights upon every human being that no government can justly take away. (3) The God-given purpose of government is to protect those rights. (4) Legitimate government is by the consent of the governed. (5) When government works against its legitimatizing purposes, the people have the right to change the government.

The Founders adopted the Articles of Confederation as a governmental system to embody the Declaration’s promises. After a decade of trial and error, they adopted the Constitution as a replacement to the Articles, as a better governmental system to deliver on the Declaration’s guarantees.

Constitutional conservatives still debate the relationship between the Declaration and the Constitution. The former is the founding charter of our nation, and the latter is the supreme law of our nation.

Even Justice Scalia and Justice Clarence Thomas did not always agree on this precise relationship. In 2000 the Supreme Court decided Troxel v. Granville, a case on the rights of grandparents.

Justice Thomas wrote a concurring opinion separate from the main opinion, in which he says in part:

I agree with the plurality [opinion] that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in [a 1925 case] holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them.

Justice Scalia agreed that parents’ rights to raise children is an inalienable right and is protected by the Constitution’s Ninth Amendment against state interference. However, he added in dissent:

The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny the legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

It is not yet clear on this Fourth of July which side Justice Gorsuch finds himself in this debate. But it is clear from his initial set of opinions that he is somewhere firmly in the broader camp that Justices Scalia and Thomas occupy, giving patriots nationwide reason to have high hopes for the role that Justice Gorsuch will play for many Independence Days to come.



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