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Why No Libertarian Supreme Court Justice?


Regardless of the extreme brouhaha surrounding Brett Kavanaugh, it’s difficult for libertarians to get excited over his nomination to the Supreme Court. For that matter, it was also difficult for libertarians to get excited over Merrick Garland, President Obama’s nominee to the Supreme Court.

There is a simple reason for that. While conservatives and liberals like to think that there is a big difference between conservative lawyers and judges and liberal ones, for libertarians there isn’t a dime’s worth of difference between them, especially when it comes to the most destructive aspects of liberty in our time: the welfare-state/regulated economy way of life and the national-security state apparatus that was grafted onto the U.S. government after World War II, both of which have become permanent features in American political and economic life.

Having been born and raised under a welfare-warfare state way of life and having been ingrained in law school that this way of life is a now permanent part of American life, lawyers like Kavanaugh and Garland have bought into these concepts and thus would never think to challenge them at a constitutional level. Therefore, for libertarians these types of lawyers are extremely boring and mundane. As judges and justices they essentially become technicians whose job is to uphold and refine most of what Congress and the president decide to do, like the Patriot Act, Social Security, trade restrictions, immigration controls, FISA warrants, tax law, economic regulations, and anything touching on “national security.”

The Constitution called into existence a government whose powers were limited to those enumerated in the Constitution. If a power wasn’t enumerated, it could not be exercised. To make sure that federal officials got the point — that their powers were few and limited — the American people demanded the enactment of the Bill of Rights, which expressly restricted the power of the federal government.

For example, the Constitution did not authorize the federal government to establish a paper-money system. That is, there is no power enumerated that specifically says, “The federal government is delegated the power to establish a paper-money system.”

Moreover, the Constitution expressly prohibited the states from establishing a paper-money system. That’s what they meant by prohibiting the states from emitting “bills of credit,” which was the term they used for paper money. The prohibition was further emphasized by restricting the states from making anything but gold and silver coins as legal tender.

Thus, the United Stated had a gold-coin, silver-coin standard for more than 100 years. That meant that the official money of the United States was not paper, but instead gold coins and silver coins. That’s what the Constitution required.

In the 1930s, President Franklin Roosevelt nationalized gold and made paper money the official money of the United States. No constitutional amendment. He said that the emergency of the Great Depression authorized him to do this.

Yet, a close reading of the Constitution reveals that there is no emergency exception to the powers enumerated to the federal government. That is, there is nothing that says, “The president and Congress shall have the power to enact whatever they deems is necessary during an emergency.” In fact, the Framers considered emergencies to be the time when the people’s liberties were most at risk at the hands of their own government.

Roosevelt also used the Great Depression to revolutionize America’s economic system, converting it to what is called a welfare state and a managed economy. That is how the United States started with Social Security, a scheme that FDR said was justified by the temporary emergency of the Depression but that is still with us some 80 years after the Depression ended.

FDR also used the Depression to convert America’s private business and industry into a highly fascist economic system, as reflected by his National Industrial Recovery Act (NIRA), which placed American businesses and industries into cartels, similar to what Italian President Benito Mussolini was doing in Italy.

As I detail in my booklet Economic Liberty and the Constitution, there was a group of justices on the Supreme Court who were battling hard to keep FDR’s revolution from taking place. These justices, who came to be known as the Four Horsemen, were opposing FDR’s policies not because they disagreed with them but  because the policies violated the U.S. Constitution. These four lawyers were the model of what a Supreme Court Justice should be.

The Four Horseman — Justices Sutherland, Van Devanter, McReynolds, and Butler — viewed their responsibilities as justices to set the law or action in question against the Constitution. If the Constitution authorized it, then they would uphold it. If it didn’t, they would declare it null and void. Whether the law was good or bad was considered irrelevant insofar as they were concerned.

The NIRA was among the laws that the Supreme Court declared unconstitutional during this period of time. Since the Constitution did not authorize the president to establish a fascist economic system, the law was declared unconstitutional.

Unfortunately, the Four Horseman were not always successful. One of their notable failures was the failure to hold unconstitutional FDR’s nationalization of people’s gold coins and his conversion of America’s century-old monetary system from a gold-coin standard to a paper-money standard. But note the clarity and eloquence of Justice McReynolds in the dissent  in the Gold Clause Cases, which involved FDR’s nullification of gold clauses in bonds:

Just men regard repudiation and spoliation of citizens by their sovereign with abhorrence; but we are asked to affirm that the Constitution has granted power to accomplish both. No definite delegation of such a power exists, and we cannot believe the far-seeing framers, who labored with hope of establishing justice and securing the blessings of liberty, intended that the expected government should have authority to annihilate its own obligations and destroy the very rights which they were endeavoring to protect. Not only is there no permission for such actions, they are inhibited. And no plenitude of words can conform them to our charter.

The federal government is one of delegated and limited powers which derive from the Constitution. “It can exercise only the powers granted to it.” Powers claimed must be denied unless granted. and, as with other writings, the whole of the Constitution is for consideration when one seeks to ascertain the meaning of any part.

The Four Horsemen were so successful in knocking out much of Roosevelt’s socialist and fascist schemes that Roosevelt resorted to a court-packing scheme, one of his most shameful acts. It would have enabled him to pack the Supreme Court with statist cronies who shared his view, thereby cancelling out the votes of the Four Horsemen.

While Roosevelt’s scheme failed to be enacted by Congress, he ended up winning the war anyway. The fight came to an end in 1937 in the case of West Coast Hotel vs. Parrish, which involved the constitutionality of a minimum wage law. While the Four Horsemen voted against the constitutionality of the measure, the majority upheld the law. More significant was the fact the majority made it clear that never again would the Supreme Court declare any measure that violated economic liberty to be unconstitutional.

Over time, the Four Horsemen retired or died and were replaced with standard statist lawyers. It has been that way ever since. Brett Kavanaugh and Merrick Garland are only the latest examples.

Despite the fact that there are many competent libertarian lawyers who could serve on the Supreme Court, they are never given any consideration. That’s because they still take principles like economic liberty and the Constitution seriously, just like the Four Horsemen did.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.