Sunday, December 26, 2010

The Last Of The Best

With the posting of Grutter v. Bollinger I’ve completed my Constitutional Law 103 mission of presenting ten of the “Best” Supreme Court opinions.

When I began this project, I wrote:

My disrespect for the Court’s collectivist-statist, intellectually dishonest decisions has hit rock bottom in the last decade-or-so. Affirmative action, national security, eminent domain, prisoner’s rights. And more.

As a result, my writing and teaching has had an unmistakable negative, sometimes even cynical tone.

While I continue to believe that my reaction is well justified, I recognize the danger of painting with too broad a brush by not recognizing the occasional opinions (though not necessarily majority ones) which have respected individual rights, understood the necessity of limited government, recognized the efficacy of free markets, realized the danger of national sovereignty’s erosion and national security’s deterioration.

Hence, I have now created Constitutional Law 103: Best Supreme Court Opinions . . . And Why They Give Hope To America Today. Over the next few months I will post ten of those opinions, with my own introduction, to illustrate some of the principles which, in a better world, would inform Supreme Court adjudication.


In a better world of American jurisprudence, to erase the moral stain and unconstitutionality of racial discrimination the white Justice Harlan would not have had to dissent in Plessy in his futile effort to protect blacks, nor would the black Justice Thomas had to dissent in Grutter in his unsuccessful attempt to protect whites. Nor would a Justice Stewart have had to dissent against the Court’s majority in its upholding federal statutory racial discrimination. Nor would any of them have had to dissent to protect the Constitution.

Nor would Justice Jackson have had to dissent in Korematsu, in his condemnation of federal storm-trooper treatment of American citizens whose only “crime” was to wear the scarlet letter “J.”

In a better world of American jurisprudence, no Federal Communications Commission would dare penalize a broadcaster for airing “dirty words” in disregard of the first words of the First Amendment, that “Congress shall make no law . . . .”, and no court would force unwilling Americans to make contracts with those whom they disdained for whatever reason, nor seize property in the name of a supposed or even real economic emergency.

And in a better world of American jurisprudence the Supreme Court of the United States would not invent an ersatz doctrine like “a right to privacy” and, with nary a nod to the Tenth Amendment, use “privacy” to invalidate the laws of fifty states.

Instead, in a better world of American jurisprudence, power—to discriminate racially, violate contract and property rights, censor speech, ignore federalism and separation of powers, interfere with free markets, and more—would be constrained against the federal government as it was in Lopez and against the states under the 14th Amendment’s Privileges or Immunities Clause via the irrefutable template Justice Thomas has provided in McDonald v. Chicago.

If we want that better world of American jurisprudence, the people of the United States better wake up. They can start by electing right-thinking senators and presidents, who appoint federal—and especially Supreme Court—judges.

In the meantime, the Best opinions prove that it is possible for there to be a better world of American jurisprudence.