On the Maine Wire Podcast, conservative legal activist Leonard Leo spoke at length about his views on a number of issues, including the Constitution, guaranteed rights, and the appropriate role of the Supreme Court within the American system of government.
According to Leo, the primary function of the Constitution is to limit the government’s powers. All other rights and freedoms, he argues, are only possible if the powers of the government are effectively restrained.
Leo further stated that the Constitution, first and foremost, fundamentally guarantees Americans freedom from government overreach. Any “positive rights” the public desires – such as the right to food or health care – must be instituted by lawmakers, not read into the existing provisions of the Constitution by the Supreme Court.
In Leo’s view, the Supreme Court’s function within the American federal system is to interpret the text of the Constitution and any relevant statutes in accordance with their original public meaning, or how the average person would have understood a given provision at the time it was enacted.
Leo argued that instead of judging Supreme Court rulings based on the normative results they produce, as is common practice today, decisions ought to be evaluated based on the reasoning used to derive them.
Although Supreme Court overreach may at times produce rulings that someone may agree with, Leo cautions that similar overreach in the future would likely result in decisions that the same person would vehemently disagree with.
Consequently, the nation as a whole is better off when the Supreme Court stays within bounds and respects its Constitutionally-defined limits.
[The Maine Wire Podcast: Leonard Leo in His Own Words – Part 1]
The Constitution’s Most Important Job
“I’ve always felt that my calling in the conservative movement was to defend the Constitution as it’s written,” Leo told the Maine Wire, emphasizing, in particular, the importance of defending “those structural limits on government power that are in the Constitution.”
According to Leo, essential to protecting the rights of citizens are clear and enforceable limits on the power of the government.
“I’ve always felt that the reason to do that is because when you have recognizable and enforceable limits on the power of the state – things like separation of powers and checks and balances, and federalism – when you have those things, and they are respected and enforced by branches of our government, you are preserving the dignity and worth of people,” Leo said.
Leo further argued that the “greatest threat” to “human dignity” and “freedom” is “a state that has no constraints or limits on its power.”
Although Leo says that he, “of course,” views rights such as freedom of speech, freedom of religion, and freedom from unreasonable searches and seizures, as “all very important,” he suggests that they are “meaningless” and “worth less than the paper they’re written on” if the powers of the government are not properly restrained.
What Kind of Rights are Guaranteed to Americans?
“I think the left misunderstands what we define as rights in our country sometimes, because frankly, those are defined by the Bill of Rights,” he said. “Most of these rights that we’re talking about in the Bill of Rights are freedom from government oppression, freedom from government interference, they are political and civil rights.”
He also noted that, similarly, even the Reconstruction Amendments served to ensure “freedom from government abuse.”
Leo identified this category of rights as “negative rights,” or the right to be free from something.
“Positive rights,” on the other hand, guarantee the right to have or do something.
This type of rights, Leo argues, are not included in the Bill of Rights and therefore must be provided by federal and state legislatures through the political process, not by the Supreme Court.
“If people want rights to health care, if people want rights to food, if people want rights to affordable housing, if people want rights to clean water, if they want guaranteed four weeks of vacation,” he said, “there’s a way to get those things. And that’s by going to Congress, or by going to state legislatures, and asking the political process to provide those rights and guarantees [through] legislation because they’re not in the Bill of Rights…but it’s not the job of a court to decide that those rights exist.”
“Those rights only exist if someone in the political process enacts them,” Leo added.
Understanding What the Supreme Court’s Job Is in America
Leo then discussed the Supreme Court directly, arguing that the public should avoid judging its decisions based on the outcome. Rather, he said, rulings should be evaluated based on the reasoning used to reach them.
“First of all, I think one of the great misconceptions in America about the Court is that we should think about it based on the results that they reach,” he said.
“That’s not what a court is all about. The question isn’t the result,” Leo said. “The question is: How is the court reaching its decisions?”
In talking about the current Supreme Court, Leo argued that it is now “for the most part” basing its decisions on “the original meaning of constitutional provisions at the time they were adopted.”
“Now the current Court, in for the most part, is beginning to reach its decisions by looking at the text of the Constitution or particular law statute that’s before it, and ascertaining the plain public ordinary meaning of those words,” he said.
“And that’s the right way for the court to interpret the law,” Leo argued, “because the courts are not meant to make law. They’re meant simply to interpret it according to what the political process desired.”
If Americans are no longer happy with what the Constitution means according to such an interpretation, Leo suggests that they ought to begin the amendment process to formally change it.
“And again, if people don’t like what the Constitution means, according to its text and original meaning, there is a process for amending it. And we’ve gone through that process on many occasions,” he said.
Leo contrasted this brand of judicial philosophy with an alternative that he dubbed as a “results-oriented form of jurisprudence.”
“In other words, what do you personally think is right and just,” he said. “So if you think someone should have a right to do something, then that should be read into the Constitution. If you think government needs more power to solve a problem, then that needs to be read into the Constitution.”
Leo warned that such an approach to Constitutional interpretation is dangerous, as someone may be happy with the results it produces on one occasion but incredibly upset by it on another.
“That’s really dangerous, because you might like…what the Supreme Court does in a particular case, by overreaching and doing something that normatively you desire – maybe a growth in the size of government that isn’t warranted by the Constitution or a new right that’s been created – you may like that. But 5,10, 15 years from now, you may not like what a Supreme Court does when it overreaches,” he said.
“If you really want to preserve dignity and freedom, you have to have government institutions that respect the limits on their power,” Leo said. “And the Court has to respect the limits on its power.”
Listen to Part 1 of the Interview in Full Here –
Maine Wire Podcast: Conservative Legal Activist Leonard Leo – Part 1
