Bench Memos

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Fourth of July Reflections


Some questions to ponder this Fourth of July weekend and throughout the upcoming Supreme Court confirmation battle:

Do we Americans still believe the “self-evident” truth 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”? Or do we think that it is no longer proper, as a political community, even to acknowledge God and that the Supreme Court bestows and defines our rights?

Do we still believe, as Jefferson and his fellow Founders did, that “virtue is the foundation of happiness”? Or do we think that the “Pursuit of Happiness” is a synonym for selfish hedonism?

Do we still believe that “Governments . . . derive[e] their just Powers from the Consent of the Governed”? Or do we acquiesce in the Supreme Court’s lawless power grabs that deprive us of our rightful power to establish the rules that govern our communities?

Do we still believe that “subject[ing] us to a Jurisdiction foreign to our Constitution” is an abuse that demands vigorous protest? Or are we content to let the Supreme Court look to foreign law to determine the meaning of our Constitution?

Do we still believe, as Chief Justice Marshall declared in Marbury v. Madison, that the Constitution is “committed to writing” so that its “limits may not be mistaken or forgotten” and that to disregard its limits is to “reduce[] to nothing what we have deemed the greatest improvement on political institutions—a written constitution”? Or do we think that the Supreme Court may invent rights that are not in the Constitution and ignore those that are?

Do we still recognize that the Constitution leaves to us as citizens the responsibility for addressing and deciding the grand questions of our age? Or do we surrender to the Supreme Court’s absurd claim that it is its role to determine which interests are somehow part of a New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?


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