Thursday, October 7, 2010

The Last Of The Worst

With the posting of the Selective Draft Law Cases I’ve completed my Constitutional Law 102 mission of presenting ten of the “Worst” Supreme Court opinions.

When I began this project, I wrote:

In preparation for my 2010 ten-lecture Internet course, Constitutional Law 101: Basic Course, I revisited many of the Supreme Courts cases I’ve taught and written about during the past fifty years. But even in the course’s twenty-hours, I was unable to include some of the worst decisions in Supreme Court history.

In reviewing those decisions I was struck, as always, by how many of them not only rejected the Founders’ vision and achievement, but how the Court embraced and enshrined principles—altruism, collectivism, statism—antithetical to the Declaration of Independence and the Constitution’s express promises of individual rights, limited government, and free markets (and, implicitly, of utmost importance today, a robust, self-interested sovereign national defense).

Accordingly, in the “Worst Supreme Court Decisions” section of this website, I’m going to post essays in which I’ll analyze ten of those decisions and use them to illustrate the adverse impact on individual rights, limited government, free markets, and national defense that results from constitutional adjudication not rooted in text and meaning.

The ten cases I’ve presented speak for themselves.

M’Culloch ascribed almost unlimited federal Congressional power under the Necessary and Proper Clause, at the expense of the Tenth Amendment and federalism.

Morrison demonstrated how separation of powers can be violated with impunity.

Griswold showed just unrestrained judicial restraint can be, in the extreme by inventing previously unknown constitutional “rights.”

Gitlow started “incorporation” of the Bill of Rights against the states, again with a severe impact on the Tenth Amendment and federalism.

Wickard constituted an exercise of federal power bestowed by M’Culloch, erasing the crucial constitutional distinction between intra- and inter-state commerce.

Heart of Atlanta Motel, Inc v. United States and Katzenbach v. McClung carried explosion of the Interstate Commerce Clause to uber-absurd ends, using it to “cure” immoral personal behavior in the name of “justice.”

Muller revealed the true paternalism, even denigration, of women that infused legislative and judicial values of that time.

Blaisdell proved that even as against the text of a specific constitutional provision (Article I, Section 10) the Court had no difficulty abrogating contract in the name of an “emergency” and the “public good.”

Roe, building on Griswold, displayed the Court’s utter arrogance in utilizing an invented principle to strike down the laws of the fifty states, and in the process granted judicial approval to the killing of, by now, millions of the unborn.

Selective Draft Law Cases established under the imprimatur of the Supreme Court of the United States that Americans do, in fact, belong to the state and that it can take their lives for the public good, in the trenches of France to the jungles of Vietnam.

And all of these “Worst” cases—as well as countless others—underscore what I say in Constitutional Law 101 and Constitutional Law 102. That as Ayn Rand wrote many years ago:

The dominant ethics of mankind’s history were variants of the altruist-collectivist doctrine which subordinated the individual to some higher authority, either mystical or social. Consequently, most political systems were variants of the same statist tyranny, differing only in degree, not in basic principle, limited only by the accidents of tradition, of chaos, of bloody strife and periodic collapse. Under all such systems, morality was a code applicable to the individual, but not to society. Society was placed outside the moral law, as its embodiment or source or exclusive interpreter — and the inculcation of self-sacrificial devotion to social duty was regarded as the main purpose of ethics in man’s earthly existence.

Since there is no such entity as “society,” since society is only a number of individual men, this meant, in practice, that the rulers of society were exempt from moral law; subject only to traditional rituals, they held total power and extracted blind obedience—on the implicit principle of: “The good is that which is good for society (or for the tribe, the race, the nation), and the ruler’s edicts are its voice on earth.”

This was true of all statist systems, under all variants of the altruist-collectivist ethics, mystical or social. “The Divine Right of Kings” summarizes the political theory of the first—“vox populi, vox dei” of the second. As witness: the theocracy of Egypt, with the Pharaoh as an embodied god—the unlimited majority rule or democracy of Athens—the welfare state run by the Emperors of Rome—the Inquisition of the late Middle Ages—the absolute monarchy of France—the welfare state of Bismark’s Prussia—the gas chambers of Nazi Germany—the slaughterhouse of the Soviet Union. (Ayn Rand, “Man’s Rights,” The Virtue of Selfishness, 123).

Rand also wrote that “America’s inner contradiction was the altruist-collectivist ethics.”

That’s what explains virtually every decision involving rights ever decided by the Supreme Court of the United States.

That’s why there are not merely ten of the “Worst,” but thousands.