“We want a Supreme Court,” declared President Franklin Roosevelt in March 1937, “which will do justice under the Constitution — not over it. In our courts, we want a government of laws and not of men.”
He really didn’t mean it. A month earlier, the very same FDR announced his plan to “pack” the Supreme Court with enough additional justices to accomplish precisely the opposite. The last thing FDR wanted was a court that defended the Constitution. He preferred one that would meekly sanctify the centralizing nonsense of his New Deal, which ended up prolonging the Great Depression by seven years.
Presidents usually don’t get to nominate more than two Supreme Court justices in the space of a four-year term. Donald Trump’s three was a rarity. But Warren G. Harding named no less than four, and Harding was President for just 2 ½ years before his untimely death in 1923. One of those Harding nominees was himself a former President — William Howard Taft.
Another Harding pick was George Sutherland, among the most steadfast defenders of liberty ever to grace the Court. Along with Justices Willis Van Devanter, James Clark McReynolds and another Harding appointee, Pierce Butler, Sutherland rebuked the worst of Roosevelt’s New Deal in one articulate opinion after another.
Extremists in Congress right now (most will be gone next November) want to raise taxes on production and productive people. Some want to tax capital gains that haven’t even been realized yet. That’s like taxing Nancy Pelosi today on all the money she’ll make in retirement when she cashes in on the connections she’s made and the favors she’s dispensed.
In a 1917 speech, years before George Sutherland joined the Court and while high-tax Woodrow Wilson was in the White House, he declared, “Today, as always, eternal vigilance is the price of liberty … The liberty to do honest and profitable business — the liberty to seek honest and remunerative investment — are in peril.”
Sutherland understood that liberty is joined at the hip with character, which he defined in part as “an unhesitating rejection of an impulse to do wrong.” In many ways, liberty and character are two sides of the same coin. One won’t last without the other.
No country in history lost its character and kept its liberties. If a people allow disrespect for rights, property and life to take hold in the land, their days as a free people are numbered. If we let our politicians get away with endless lies and deceptions, to buy votes with other people’s money, or to intimidate others into silence, the ash heap of history awaits us around the corner. George Sutherland warned us with a question:
“Do the people of this land desire to preserve those liberties so carefully protected by the First Amendment: liberty of religious worship, freedom of speech and of the press, and the right as freemen peaceably to assemble and petition their government for a redress of grievances? If so, let them withstand all beginnings of encroachment. For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”
Lawrence W. Reed, a resident of Newnan, is president emeritus of the Foundation for Economic Education. His most recent book is “Was Jesus a Socialist?” He can be reached at firstname.lastname@example.org .