By Alan W. Cohen
In 2000, a Supreme Court decision gave us full insight into the difference between a Libertarian and an Originalist. That one case, Troxel v. Granville, marked a split between Mr. Justice Clarence Thomas and the late Antonin Scalia. The case involved the question of whether the Constitution provides a Right to Parent, and, if so, should the Court enforce that right. Justice Thomas said yes. There is a fundamental right to parent, and the Court should protect that right using the highest level of scrutiny. Justice Scalia agreed that there was a Right to Parent, and that the source of that right was in fact the Ninth Amendment, but said the Court had no authority to protect it.
In an interview in 2016, Justice Thomas agreed with libertarians that the Constitution must be read through the prism of the Declaration of Independence. In his book, The Republican Constitution, Georgetown law professor Randy Barnett explains that the inalienable rights came even before the Constitution, and that the Bill of Rights was simply an exclamation point. Thus, when James Madison proposed the Ninth Amendment, he wanted to make certain that we were aware that the first eight amendments were not inclusive. In the 20th Century, the Court has recognized a multitude of rights not enumerated, including, but not limited to, the right to marry, the right to parent, the right to travel, the right to dominion over their body.
This brings us to the question for Judge Neil Gorsuch. Regarding the case of Troxel v. Granville, do you agree with Mr. Justice Scalia’s dissent? If the answer is yes, then he is a true Originalist. if the answer is no, and that he agrees with Mr. Justice Thomas that the Right to Parent is a fundamental right protected under the Constitution, subject to strict scrutiny, then perhaps, he is a Libertarian. Not that Justice Thomas would ever describe himself as a Libertarian, but, unlike, his fellow justice, he has Libertarian tendencies. With a conservative justice, that is all that we can ask.
Alan W. Cohen retired after 25 years as a practicing attorney. Besides this blog, he is also the author of several books, the most recent being his 2017 work, Private Vows: The Case for Ending State Regulation of Marriage and Divorce. It is available on Amazon.