With today’s blog I
begin an occasional series of essays analyzing the “worst” decisions of the
Supreme Court.
Over the years, as
constitutional law practitioner and teacher, I have been struck not only by how
many of the worst decisions and opinions supporting them not only rejected the
Founders’ vision and achievement, but also how and why the Court embraced and
enshrined principles 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
forthcoming occasional series of essays examining the Court’s “worst” decisions/opinions,
I will illustrate the adverse impact on individual rights, limited government,
free markets, and national defense that results from constitutional
adjudication not rooted in text and objective and/or understanding.
First, the meaning of
some important terms I’ll use.
The worst Supreme
Court decisions are those which have most adversely affected republican
institutions and individual rights.
By “republican
institutions” I mean the political and judicial 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 and their citizens possessing residual
powers not delegated to the federal government nor specifically withheld from
the states.
2. The powers of the federal
government 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, and limiting the power of, the federal and state governments.
4. A textually explicit legislative,
not judicial, mechanism for amending the Constitution.
By “individual
rights” I mean those expressly stated in the Declaration of Independence, those
established by the Constitution necessary for limited government, and those
expressly recognized by the first ten amendments
to the Constitution.1
Thus, we find prominently
among the worst decisions/opinions those which have:
Enlarged the power of
the federal government at the expense of the states.
M Moved the demarcation
between those levels of government.
Ø Anointed the Supreme
Court itself the final word on the meaning of the Constitution.
Ø Weakened and often curtailed rights and powers
enumerated in the first ten and post-Civil War amendments' “rights.”
All these decisions/opinions—dealing
with federalism, separation of powers, judicial review and the meaning and
extent of rights—have been rooted in the belief that the Constitution of the
United States of America is a “living” document. That
to accommodate today’s changing values the founding principles of this nation
are passé, the Declaration of Independence’s ringing endorsement of individual
rights is outdated, the Constitution’s creation of a representative republic is
from a time gone by, and the Bill of Rights is not a restraint on government
but rather a fertile source of newly invented “rights.”
Among
the most zealous proponent of the Constitution as a “living document, was the
late Supreme Court Justice William J. Brennan, Jr. “[T]he Constitution,”
according to Brennan,
embodies the aspiration to social
justice, brotherhood, and human dignity that brought this nation
into being. * * * Our amended Constitution is the lodestar for our
aspirations. Like every text worth reading, it is not crystalline. The
phrasing is broad and the limitations of its provisions are not clearly marked.
Its majestic generalities and ennobling pronouncements are both luminous
and obscure. * * * When Justices interpret the Constitution, they
speak for their community, not for themselves alone. The act of
interpretation must be undertaken with full consciousness that it is . . . the
community’s interpretation that is sought. * * * But the ultimate question
must be, what do the words of the text mean in our time. For the genius
of the Constitution rests not in any static meaning it might have had in a
world that is dead and gone, but in the adaptability of its great
principles to cope with current problems and current needs. * * * Our
Constitution was not intended to preserve a preexisting society but to make
a new one, to put in place new principles that the prior
political community had not sufficiently recognized.2
(My italics.)
There are
many rejoinders possible to Brennan’s nakedly collectivist, “living
constitution” confession.
One comes
from the late author Ayn Rand, an émigré from the Soviet Union, who has exposed
the ugly underbelly of Brennan’s and all other justices responsible for the
worst Supreme Court decisions/opinions I will be deconstructing in future
blogs.
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” [“the voice of the people, is the voice of God] 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.3
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” [“the voice of the people, is the voice of God] 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.3
This is what Justice Brennan and his Living Constitutionalists will
bring America into, if they can scuttle the principled system the Founders
bequeathed us, with its foundation in the concept of individual rights.
As to “rights,” Rand observed they “are a moral concept—the
concept that provides a logical transition from the principles guiding a
individual’s actions to the principles guiding his relationship with others—the
concept that preserves and protects individual morality in a social context—the
link between the moral code of a man and the legal code of society, between
ethics and politics. Individual rights are the means of subordinating
society to moral law.4 (Emphasis in original.)
In
concluding this Introduction, it is useful to consider what the Founders’ system
was, and still can be, if we fight hard and long enough.
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 then 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 the powers of that government 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 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 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 their necessary corollary, property.
In sum, the
Constitution gave us democratic institutions in a republican form of government,
and the Bill of Rights as the protection of individual rights.
Or so the Founders
thought.
In reaction to Chief
Justice John Marshall’s decision/opinion in the seminal case of Marbury
v. Madison—which established the power of judicial review, making the
Supreme Court of the United States the “more equal” branch of the federal
government—our third President, Thomas Jefferson, said the Constitution was “a
thing of wax in the hands of the judiciary, which they may twist and shape into
any form they please.”
We will see how
Jefferson’s “thing of wax” has been molded by the Court’s idea of the law of
the Constitution into a shape unrecognizable to Jefferson and his co-Founders.5
ENDNOTES
1 The
reference to the first Ten Amendments as the “Bill of Rights,” is a misnomer.
The Tenth Amendment provides that “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” (Emphasis added.)
2 Speech
by Associate Justice of the Supreme Court of the United States William J. Brennan,
Jr., to the Text and Teaching Symposium, Georgetown University, October 12,
1985, Washington, D.C., reprinted in “The Great Debate: Interpreting Our
Written Constitution,” published by the Federalist Society as Occasional Paper
No. 2 (1986).)
3 Ayn Rand, “Man’s Rights,” The Virtue of
Selfishness, 123 (1964).
4 Ayn Rand, “Man’s Rights,” The Virtue of
Selfishness, 122 (1964).
5 My working definition
of “constitutional law” (with help from the late Professor Edward S. Corwin):
1. A body of principles;
2. Derived from the interpretation or application;
3. By a high court [e.g. the Supreme Court of the United States;
4. Of a written constitutional document;
5. While disposing of cases;
6. In which the validity of some act of governmental power;
7. National, state, or local;
8. Has been challenged;
9. In relation to national or state constitutional documents.
2. Derived from the interpretation or application;
3. By a high court [e.g. the Supreme Court of the United States;
4. Of a written constitutional document;
5. While disposing of cases;
6. In which the validity of some act of governmental power;
7. National, state, or local;
8. Has been challenged;
9. In relation to national or state constitutional documents.
In other words, “constitutional
law” results from comparing government action or inaction against what the
people of the United States have authorized it to do.
* * *
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