The Gorsuch Confirmation and the Finnis Connection

I haven’t had time to weigh in yet on the Gorsuch nomination to the Supreme Court, so it is time to catch up. In addition to having a law degree from Harvard, it is notable that Gorsuch also took a leave from his lucrative law practice to attend Oxford University to earn a Ph.D under the direction of John Finnis. Never heard of John Finnis? I predict you will in the confirmation hearings. And the likelihood is that Democrats will make fools of themselves, or at the very least unwittingly reveal their essential contempt for the American Founding, and the only question is whether Gorsuch, who appears to be a gentleman of the first order, will restrain himself from embarrassing them out of the political calculus of merely wanting to get to a confirmation vote with the least amount of controversy.

FinnisFinnis is a long time professor of jurisprudence at Oxford, and the author of several fine books on the centrality of natural law to jurisprudence. His most notable book is Natural Law and Natural Rights (highly recommended, by the way), and I am sure right now Democratic staffers on the Judiciary Committee are reading through it not with an eye to comprehension, but to see if they can derive any “gotcha” questions from the text to pose to Judge Gorsuch. Because that’s exactly what Joe Biden did to Clarence Thomas back in 1991, except with a different book.

I can’t readily find a video of it on YouTube, but I distinctly recall that Sen. Biden decided to attack Thomas’s previously expressed support for the founders’ understanding of natural law and natural rights by holding up Richard Epstein’s impressive treatise on property rights, Takings, and demanding of Thomas, “Are you now or have you ever been a reader of this book?”

The Democratic slogan will be that Gorsuch is “out of the mainstream,” which is shorthand for “not appointed by a Democrat.” But more than that—it means that anyone who is faithful to the philosophy of the American Founding is “out of the mainstream.”

If you want to see how badly liberals want to avoid even acknowledging this issue, perhaps I should refer everyone to a passage from a certain forthcoming book (that Amazon has started shipping, incidentally!!):

Liberals are, at best, tentative when the subject [of the founders’ views of natural rights] comes up. Barack Obama cited the preface of the Declaration of Independence approvingly in his second inaugural address, but immediately drew back from embracing it as expressing a rational or timeless truth: [H]istory tells us that while these truths may be self-evident, they have never been self-executing. . .” (Emphasis added.)

An especially revealing example of the aversion liberals have to embracing the principles of the Declaration is Justice Elena Kagan, who in the course of her confirmation hearings for the Supreme Court in 2010 declined to state whether she agreed with the ideas of the Declaration, especially the central idea of natural rights antecedent to all government:

SEN. TOM COBURN: I’m not asking about your judicial – I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area. Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a Constitutional right. He said that’s a natural right. And what I’m asking you is do you agree with him?

KAGAN: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

COBURN: So you wouldn’t embrace what the Declaration of Independence says, that we have certain inalienable and God-given rights that aren’t given in the Constitution, that are ours, ours alone, and that the government doesn’t give those to us.

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN:  I understand that. I’m not talking about as a justice, I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws – that you should not want me to act in any way on the basis of such a belief.

What Thomas Jefferson called “an expression of the American mind” is now more a dusty relic for a mind that has moved on. As historian Pauline Meier put it in her widely regarded 1997 book on the Declaration entitled American Scripture, “in the twentieth century it became necessary to explain away the Declaration of Independence as Jefferson understood it.” There are myriad reasons for this re-interpretive necessity, but all can be reduced to a common cause—the need to get over the American founding because of its philosophical and constitutional constraints on visionary politics.

Judge Gorsuch stands foursquare in the way of the liberal willfulness to jettison the principles of the Constitution, which is why the left is in a fury to defeat him, as they have been with just about every other recent Republican Supreme Court appointment. But I suspect any liberal attempt to use Finnis against Gorsuch will result in finis to their attempt to block him.

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