Sunday, March 9, 2014

Memorandum to the Tea Parties (III)--and others



 [Please forward]

Some of the worst Supreme Court decisions . . . and what they mean for Americans today
The Constitution of the United States of America is “a thing of wax in the hands of the judiciary, which they may twist and shape into any form they please” wrote President Thomas Jefferson. 
Our third President’s words were written in reaction to Chief Justice John Marshall’s decision in the landmark case of Marbury v. Madison, which established the principle of judicial review and made the Supreme Court of the United States the “more equal” branch of the federal government.
Jefferson’s “thing of wax” has unfortunately been molded by the Supreme Court of the United States into a shape that the Founders would not recognize. For example: 
·       The First Amendment does not allow certain forms of legitimate free exercise of religion.
·       The Amendment allows certain types of so-called hate speech to be punished.
·       The Second Amendment does not fully protect a citizen’s right to bear arms.
·       The Fourth Amendment’s requirement that searches and seizures be “reasonable” is satisfied by government sweeps of billions of bits of electronic communications.
·       The Fifth Amendment’s protection against self-incrimination requires criminal suspects be given so-called Miranda warnings.
·       The Fifth Amendment’s prohibition against the government taking private property for public use, really means it can be taken for a public purpose.
·       The Sixth Amendment’s guarantee of counsel in criminal cases enables the defendant and judge to force private lawyers to provide that representation.
·       The Eighth Amendment’s prohibition of cruel and unusual punishments requires prison libraries and Kosher meals.
·       The Ninth Amendment—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is a dead letter, not having been decisive in any case, in any American court, ever.
·       The Tenth Amendment—“The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—if not a dead letter, is certainly moribund at the hands of federal legislative onslaught and presidential executive orders.
·       The Fourteenth Amendment’s Equal Protection Clause is used to justify and foster racial discrimination against Caucasians, Asians, and others.
·       The Fourteenth Amendment’s Due Process Clause is used as the intellectually fraudulent means to create ersatz “rights,” worst among them Justice William O. Douglas’s so-called right to privacy.
·       And much more, ad nauseam!
Yet most Americans know little about these Supreme Court decisions, which have violated individual rights, made a mockery of limited government, emasculated free enterprise, and weakened our national defense, all by rejecting the fundamental principles of federalism, separation of powers and judicial restraint.
In recently reviewing those decisions I was struck, as always, by how many of them not only rejected the Founders’ vision and achievements, but also 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, for about the next ten weeks I’m going to post essays in which I’ll analyze ten of those decisions, among the worst ever to come from the Supreme Court of the United States, 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.
By what criteria do I deem a Supreme Court decision among the “worst”?
The worst Supreme Court decisions are those which have most adversely affected republican institutions and individual rights.  
For present purposes, by “republican institutions” I mean the political and legal structure established by the Constitution of the United States of America; to wit:
1.  A representative federal republic comprised of a national government possessing strictly limited, delegated powers, and constituent states possessing residual powers not delegated nor specifically withheld;
2.  The powers of that federal government being checked by the principles of federalism, separation of powers, and limited judicial review; 
3.  A federal Bill of Rights (and certain of the later amendments applicable to the states) protecting individuals from the power of the federal and state governments; and
4.  A textually explicit legislative (not judicial) mechanism for amending the Constitution. 
By “individual rights” I mean those guarantees described in the Declaration of Independence, those implicit in the concept of limited government established by the Constitution, and those expressly recognized by amendments to the Constitution.
Thus, among the many Supreme Court decisions that have enlarged the power of the federal government at the expense of the states far more than the Founders would have imagined (the federalism issue), the decisions that have moved the demarcation line the Founders drew between those levels of government (the separation of powers issue), the decisions that have anointed the courts the arbiters of every imaginable dispute between individuals (the judicial review issue), the decisions that have curtailed rights enumerated in the Bill of Rights and found in the post-Civil War amendments “rights” their proponents never dreamed of (the “Living Constitution” issue), I have chosen ten of the “worst.”
However, I have used as a litmus test for evaluating Supreme Court decisions not whether they have merely violated the fundamental founding principles of this Republic, for there are too many such decisions, but instead whether they have done so in a manner and to an extent severely antithetical to the principles upon which the founders built and then bequeathed to us.
Those principles are worth summarizing, as a preface to the consideration of the many decisions that most violated them.
The Declaration of Independence was a statement of political principles.  In one short paragraph it articulated a truly revolutionary view of man and government:
We hold these Truths to be self-evident: that all Men are created equal; that they are   endowed by their Creator, with certain unalienable Rights; that among these are Life,      Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are     instituted among Men, deriving their just Powers from the consent of the Governed . . . .
Jefferson spoke not only of “truths,” but regarded them as “self-evident.”  He invoked the idea of “equality” (as imperfect as it was).  The centerpiece of the Declaration was the core political concept of “rights,” upon which no system of government had ever before been founded.  Jefferson enumerated three of the basic rights—“life, liberty, and the pursuit of happiness”—from which another basic right, property, can logically be inferred.  He understood the necessity of protecting those rights through government, but only one “created” by “men,” not by divine right or raw sovereign power.  And that government’s powers must be “just,” and derived from “consent” of the governed.
This statement of philosophical/political principles had to be implemented by a charter for the actual organization and operation of a functioning republic.
Enter the Constitution—a hope and a promise never equaled as an attempt at the practical implementation of individual rights and limited government propounded by the Declaration of Independence.
Looking at the Constitution in essentials—skipping details like the Electoral College and organization of the House of Representatives—it is clear that the document masterfully turned the Declaration’s principles into the fundamental mechanics of a representative republic.
The preamble begins with “We the People of the United States,” echoing the Declaration’s recognition that “governments are instituted among men, deriving their just powers from the consent of the governed.”
Adverting to the Declaration’s recognition “that all men are created equal, that they are endowed . . . with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness,” the stated objects of the new government were “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”
To realize these goals by creating a national government where none had existed before, the Constitution provided a mere six articles.
Articles I, II, and III—legislative, executive, and judicial—contain specific, limiting delegations of power to the national government and establish its working machinery.
Article IV establishes the relationship of the national government to the states.
Article V provides for amendment of the Constitution.
Article VI institutionalizes the supremacy of the national government over the states.
Because many Americans feared the power of the proposed national government, there was a fierce fight over ratification of the Constitution.  Eventually it was ratified, but only after assurances made by prominent Founders that a Bill of Rights would be forthcoming.
In the closing days of 1791, the first ten amendments were officially ratified, guaranteeing, it was thought, the right to “life, liberty, and the pursuit of happiness”—and property.
In sum, the Constitution gave us democratic institutions in a republican form of government, and the Bill of Rights the protection of individual rights.
Or so the Founders thought.
Many of them, as we will see, would be appalled by what the Supreme Court has done to what Jefferson called this “thing of wax”—as you’ll see from the “worst decisions” that I’ll discuss in the essays I’m going to post on this blog. (Some of the decisions are treated at greater length in my The American Constitution and Ayn Rand’s "Inner Contradiction.")
In conclusion I want to emphasize that these ten “worst” decisions are a mere drop-in-the-bucket from the Supreme Court’s earliest days to today. Indeed, simply identifying those many, many other decisions—let alone explaining them—would be a massive task.  However, if one extrapolates from the ten I have chosen, there should be no doubt that the Constitution of the United States of America has always been “a thing of wax.”