Given the full title of this serialized "book"—Fifty Of The Worst Supreme Court Decisions, and Their Adverse Impact on Republican Institutions and Individual Rights—I’m obliged to explain some of the terms I use.
In its two-hundred-plus years of existence, the Supreme Court of the United States has rendered thousands of decisions, many that contain multiple opinions—majority, concurring, and dissenting.
Those decisions deal with virtually every provision of the federal Constitution, the Bill of Rights, countless federal statutes, and the laws of every state. In their official printed edition, the Court’s written opinions occupy hundreds of volumes.
So the question is by what standard can it be said that fifty of these decisions are the "worst."
While others doubtless have their own lists, my answer is found in the subtitle of this book: The fifty Supreme Court decisions examined here are those which have most adversely affected republican institutions and individual rights.[i]
For the purposes of this book, “republican institutions” means the political and legal structures established by the Constitution of the United States of America, to wit:
· A representative federal republic comprised of a national government possessing strictly delegated powers, and constituent states possessing powers not delegated nor specifically withheld;
· The powers of that federal government being checked by the principles of federalism, separation of powers, and judicial review;
· A federal Bill of Rights (and certain of the later amendments applicable to the states) protecting individuals from the power of government; and
· A textually explicit legislative (not judicial) mechanism for amending the Constitution.
As I use the term “Individual Rights,” it means 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 guarantees enumerated in the Bill of Rights and created through the post-Civil War amendments “rights” their proponents never dreamed of (the “Living Constitution” issue), I have chosen the “worst.”
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 whether they have done so in a manner and to an extent that is severely antithetical to the principles the founders built on and bequeathed to us.[ii]
Those principles are worth summarizing, as a preface to the consideration of the fifty 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 in that day). 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 limited government and individual rights 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’s 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 ‘government’s 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 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.[iii]
Or so the founders thought.
Many of them, as we will see, would be appalled by what the Supreme Court has done to this “thing of wax.”
[i] In 1983, I authored Sweet Land of Liberty? The Supreme Court and Individual Rights, the original edition of which has been out of print for over twenty years. The book’s theme was that beginning in the Supreme Court’s earliest days the animating premises of its decisions in cases involving individual rights had been what the late author Ayn Rand called “altruism, collectivism, and statism.” Some of the same cases discussed there from that perspective are discussed here because, being rooted in those principles, they qualify as some of “the fifty worst Supreme Court decisions.”
[ii] Many others, lawyers and laypersons alike, see the matter differently. They believe that the fundamental founding principles of this nation are passé, that the Declaration of Independence’s ringing endorsement of individual rights is outdated, that the Constitution’s creation of a representative republic is from a time long gone, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.” These people are the proponents of the Constitution as a “living document,” and their high priest was the late Supreme Court Justice William J. Brennan, Jr. “[T]he Constitution,” according to him,
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. (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).)
[iii] The late writer Ayn Rand, who had emigrated to America from the Soviet Union, has eloquently expressed why the United States was unique in world history:
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
saughterhouse of the Soviet Union. (Ayn Rand, “Man’s Rights,” The Virtue of
Selfishness, 123).
