I Have a Litmus Test

Alexander S. Peak

20 July 2005

I must admit, I do have a litmus test when it comes to electing people to our courts.  I call it the Constitution.  I’ve said before that—I don’t care if a person is a liberal or a conservative in her (or his) personal life—when she takes the bench, it is her duty to put her liberalism and/or conservatism on the side, and assume the position of a staunch constitutionalist.

Now that Justice Sandra Day O’Connor is retiring, there’s a sense of urgency in finding a new Court Justice to replace her.  Yesterday evening, President Bush announced that Judge John G. Roberts, Jr. would be his nominee.  Few disagree that Judge Roberts has an impressive background, but the question everyone is wondering is:  How will he rule various cases if his nomination to the Supreme Court is confirmed?  It’s unclear at present whether or not the Democrats will choose to filibuster this candidate or not, but it’s quite clear that there will be a rough confirmation process.  [July 22 Update:  It seems now that the confirmation process might not be as rough as I’d previously presumed.  The Democrats seem to be warming up to the new Supreme Court nominee.  Still, it should be interesting to watch.]

The Democrats will no doubt have a lot of questions for the Supreme Court hopeful, and it’s a sure bet that his opinion regarding Roe v. Wade will be questioned.  One would think that abortion is the only pressing issue in the Union from the concentration on this topic.

I honestly don’t yet know how I feel about Judge Roberts’s nomination.  But I know the litmus test that I would apply to his nomination, and the questions I would ask, if I were privy to asking questions in Congressional hearings.  The following is a list of questions I would love to ask the nominee:

  1. Judge John Roberts, do you agree with me that the war on drugs at the federal level is unconstitutional?

  2. Judge Roberts, do you agree with me that, in keeping with 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,” that the respective states have the constitutional authority to legalise or criminalize any drugs they see fit?  Do you agree that the ruling in Gonzales v. Raich should be overturned, thus restoring states’ “rights”?

  3. Judge Roberts, do you agree with me that licensing marriage is unconstitutional?  Since marriages are a religious institution, doesn’t it infringe upon freedom of religion for the government to legislate marriage?  Shouldn’t defining marriage be left up to the individual churches?

  4. Judge Roberts, do you agree with me that Hiibel v. Sixth Judicial District Court of the state of Nevada should be overturned, and that giving police carte blanche authority to demand people to divulge their names (or papers) infringe upon their fourth and fifth amendment rights?

  5. Judge Roberts, do you agree with me that the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (more commonly known as the USA PATRIOT Act) is unconstitutional?

  6. Judge Roberts, do you agree with me that legislating professional sports at the federal level is unconstitutional?

  7. Judge Roberts, do you agree with me that military conscription is unconstitutional unless the person being drafted is a convicted criminal, and that hence the 1918 ruling in Arver v. United States should be overturned?  The thirteenth amendment does after all say, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  Doesn’t this make the draft, as well as Selective Services, unconstitutional?

  8. Judge Roberts, do you agree with me that using eminent domain for “economic development” is unconstitutional?  The recent ruling in Kelo v. New London not only effectively erased the “for public use” clause of the fifth amendment, but has also effectively removed all private property rights within the U.S.  Do you not agree that this ruling must be overturned?

  9. Judge Roberts, do you agree with me that prohibition against public nudity is unconstitutional, on the grounds that clothing choice is an expression of speech?  Or do you believe the government has the right to dictate what we wear, what private property we display on our bodies?

  10. Judge Roberts, do you agree with me that laws prohibiting flag-burning are unconstitutional, and agree to uphold the ruling in U.S. v. Eichman?

  11. Judge Roberts, do you agree with me that laws at the federal level against murder, rape, and other such things are unconstitutional?  Do you agree with me that Article I, Section 8 of the Constitution is abundantly clear as to what the federal government can legislate, and that all powers not directly given to the federal government belong to the states and the people respectively?

  12. Judge Roberts, do you agree with me that the federal government’s No Child Left Behind Act of 2001 is unconstitutional?

  13. Judge Roberts, do you agree with me that gun “control” is unconstitutional at every level of government?  The second amendment does say that the “right of the people to keep and bear Arms, shall not be infringed.”  Do you agree that all rulings declaring gun control “constitutional” should therefore be overturned?

  14. Judge Roberts, do you agree with me that sword-control and pepper spray-control are also unconstitutional?  (Yes, as crazy as it sounds, there are places in the U.S. that have regulated the use of pepper spray, making it even harder for women to defend themselves against attackers.)

  15. Judge Roberts, do you agree with me that compulsory mental-health screenings, at the federal level, or subsidized by the federal government, are unconstitutional?

  16. Judge Roberts, do you agree with me that the Bipartisan Campaign Finance Reform Act of 2002 (also known as the McCain-Feingold Bill) is unconstitutional, as it censors political content?  Would you agree that the ruling in McConnell v. F.E.C. should be overturned?

  17. Judge Roberts, do you agree with me that censorship (not including rape porn and child porn) is unconstitutional?  Would you agree with me therefore that the 1978 ruling in F.C.C. v. Pacifica Foundation, the ruling which allowed the F.C.C. to prevent George Carlin from using the “seven dirty words” on the radio, should be overturned?

  18. Judge Roberts, do you agree with me that the REAL ID Act of 2005 is unconstitutional?

  19. Judge Roberts, do you agree with me that it’s the duty of Congress, not the President, to declare war, and that Congress doesn’t have the constitutional authority to delegate its own constitutional powers to other branches of the government (as that thus negates the separation of powers)?  Do you agree that the War Powers Resolution of 1973 should be restored?

  20. Judge Roberts, do you agree with me that forcing-people-to-say-things-against-their-will violates freedom of speech?

  21. Judge Roberts, do you agree with me that everyone has an innate right not to undergo cruel and unusual punishment, not just Americans?

  22. Judge Roberts, do you agree with me that everyone has an innate right to due process, not just Americans?

  23. Judge Roberts, do you agree with me that everyone has an innate right to freedom of speech, not just Americans?

  24. Judge Roberts, do you agree with me that everyone has an innate right to freedom of religion, not just Americans?

  25. Judge Roberts, do you agree with me that it’s unconstitutional to give tax dollars to foreign nations?  Regardless of whether the cause is to end poverty or help with disaster relief, I see nothing in the Constitution giving the Federal government the authority to appropriate funds to other nations, or to the dictators thereof.  Wouldn’t you agree that this is unconstitutional?

  26. Judge Roberts, do you agree with me that Social Security, Medicaid, Medicare, NAFTA, CAFTA, GATT, our involvement in the U.N., our involvement with the WTO, and with the World Bank are all unconstitutional?

  27. And finally, Judge Roberts, do you agree with me that America should be a republic, and not a democracy?

Alex Peak served as President of the College Libertarians of Towson, 2004–2006; Membership Chair, 2006–2007; and Vice President, 2007–2008.

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