The Great Debate: President Ronald Reagan - September 26, 1986

President Ronald Reagan

At the investiture of Chief Justice William H. Rehnquist and
Associate Justice Antonin Scalia at the White House
September 26, 1986, Washington, DC

Mr. Chief Justice Burger, Mr. Chief Justice Rehnquist, members of the Court, and ladies and gentlemen: Today we mark one of those moments of passage and renewal that has kept our Republic alive and strong -- as Lincoln called it, the last, best hope of man on Earth -- for all the years since its founding. One Chief Justice of our Supreme Court has stepped down, and together with a new Associate Justice, another has taken his place. As the Constitution requires, they've been nominated by the President, confirmed by the Senate, and they've taken the oath of office that is required by the Constitution itself -- the oath "to support and defend the Constitution of the United States . . . so help me God.''

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With these two outstanding men taking their new positions, this is, as I said, a time of renewal in the great constitutional system that our forefathers gave us -- a good time to reflect on the inspired wisdom we call our Constitution, a time to remember that the Founding Fathers gave careful thought to the role of the Supreme Court.

In a small room in Philadelphia in the summer of 1787, they debated whether the Justices should have life terms or not, whether they should be part of one or the other branches or not, and whether they should have the right to declare acts of the other branches of government unconstitutional or not. They settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. In the convention and during the debates on ratification, some said that there was a danger of the courts making laws rather than interpreting them. The framers of our Constitution believed, however, that the judiciary they envisioned would be "the least dangerous'' branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had "neither force nor will, but merely judgment.'' The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported.

Hamilton and Thomas Jefferson, for example, disagreed on most of the great issues of their day, just as many have disagreed in ours. They helped begin our long tradition of loyal opposition, of standing on opposite sides of almost every question while still working together for the good of the country. And yet for all their differences, they both agreed -- as should be -- on the importance of judicial restraint. "Our peculiar security,'' Jefferson warned, "is in the possession of a written Constitution.'' And he made this appeal: "Let us not make it a blank paper by construction.''

Hamilton, Jefferson, and all the Founding Fathers recognized that the Constitution is the supreme and ultimate expression of the will of the American people. They saw that no one in office could remain above it, if freedom were to survive through the ages. They understood that, in the words of James Madison, if "the sense in which the Constitution was accepted and ratified by the nation is not the guide to expounding it, there can be no security for a faithful exercise of its powers.'' The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not -- as it is not -- will we have liberal or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people? And this is why the principle of judicial restraint has had an honored place in our tradition. Progressive, as well as conservative, judges have insisted on its importance -- Justice Holmes, for example, and Justice Felix Frankfurter, who once said, "The highest exercise of judicial dutyis to subordinate one's personal pulls and one's private views to the law.''

Chief Justice Rehnquist and Justice Scalia have demonstrated in their opinions that they stand with Holmes and Frankfurter on this question. I nominated them with this principle very much in mind. And Chief Justice Burger, in his opinions, was also a champion of restraint. All three men understand that the Founding Fathers designed a system of checks and balances, and of limited government, because they knew that the great preserver of our freedoms would never be the courts or either of the other branches alone. It would always be the totality of our constitutional system, with no one part getting the upper hand. And that's why the judiciary must be independent. And that is why it must exercise restraint.

So, our protection is in the constitutional system, and one other place as well. Lincoln asked, "What constitutes the bulwark of our own liberty?'' And he answered, "It is in the love of liberty which God has planted in us.'' Yes, we the people are the ultimate defenders of freedom. We the people created the Government and gave it its powers. And our love of liberty and our spiritual strength, our dedication to the Constitution, are what, in the end, preserves our great nation and this great hope for all mankind. All of us, as Americans, are joined in a great common enterprise to write the story of freedom -- the greatest adventure mankind has ever known and one we must pass on to our children and their children, remembering that freedom is never more than one generation away from extinction.

The warning, more than a century ago, attributed to Daniel Webster, remains as timeless as the document he revered. "Miracles do not cluster,'' he said, "Hold on to the Constitution of the United States of America and to the Republic for which it stands -- what has happened once in 6,000 years may never happen again. Hold on to your Constitution, for if the American Constitution shall fall there will be anarchy throughout the world.''

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