Friday, May 29, 2020


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

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.


 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.
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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