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Constitutional Law 102: Worst Supreme Court Decisions . . .

And What They Mean For Americans Today


It 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, referring to the Constitution of the United States of America. 

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 Court into a shape that the Founders would not recognize:            

  • Use of the Interstate Commerce Clause, on "moral" grounds to force a local hamburger restaurant to serve unwanted customers;
  • Denial of pain-relieving medical marijuana, legal under some state laws, to cancer sufferers;
  • Crippling of presidential war power by bleeding-heart internationalist judges, who exalt the benign treatment of terrorists over the security of Americans;
  • Federal courts taking over local schools, prisons and other state and local institutions in the name of “due process” and “equal protection”;
  • Racial discrimination against Caucasians, in clear violation of the Constitution’s insistence that all citizens be treated equally ;  
  • Seizure of private property as a gift to others, by means of corrupt and indefensible construction of the Constitution’s Fifth Amendment;
  • Government nullification of private contracts, based on the “need” of borrowers and the supposed existence of a national “emergency”;
  • Grudging recognition of even a limited “right” to bear arms, despite the language of the Second Amendment and the dictates of Due Process;
  • Creation by judicial smoke and mirrors of an ersatz “right of privacy, which has resulted in the killing of literally countless of the unborn.”
  • And much more, ad nauseam.   

Yet most Americans know little about what are the “worst” Supreme Court decisions—High Court cases which have violated individual rights, made a mockery of limited government, emasculated free enterprise, and weakened our national defense by rejecting the fundamental principles of federalism, separation of powers and judicial restraint.

In preparation for my 2010 ten-lecture Internet course, Constitutional Law 101: Basic Course (www.henrymarkholzer.com/constitutional_law.html), I revisited many of the Supreme Courts cases I’ve taught and written about during the past fifty years.  But even in the course’s twenty-hours, I was unable to include some of the worst decisions in Supreme Court history.

In reviewing those decisions I was struck, as always, by how many of them not only rejected the Founders’ vision and achievement, but how the Court 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, in the “Worst Supreme Court Decisions” section of this website, I’m going to post essays in which I’ll analyze ten of those decisions 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. [1]

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 states 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. [2]

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 “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. [3]

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 website.

Access to the essays is free of charge.

Although I’ve recently discussed some of the “worst” cases in my ten-lecture  Constitutional Law 101: Basic Course (www.henrymarkholzer.com/constitutional_law.html) and on my blog (www.henrymarkholzer.blogspot.com), the essays found here will usually contain considerably more analysis and detail.

There is only one way for those interested in these essays to be informed when a new one has been posted on this website: by receiving my blog (www.henrymarkholzer.blogspot.com) — for which one must be registered (at no cost).

The blog announcement will contain the name of the “Worst Decision,” a brief description of its subject, and a link to where on this website the essay can be accessed.

It will be on this page (below, after the Endnotes) that the ongoing list and a summary of “Worst Supreme Court Decisions” will be posted, with links to each essay.  Postings will appear roughly every three weeks until all ten cases appear..

In conclusion I want to emphasize that the ten "worst" decisions are a mere microcosm of countless others, 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."






[1] 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 since 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 in Sweet Land of Liberty? from that perspective are discussed here.

[2] 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 gone by, and that the Bill of Rights is not a restraint on government but rather a source of newly found, even “creatable” 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 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. (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] The late 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 slaughterhouse of the Soviet Union
. (Ayn Rand, “Man’s Rights,” The Virtue of Selfishness, 123).

Chief Justice John Marshall rewrites the Constitution’s Article I, Section 8.

2. Morrison v. Olson
This Independent Counsel case is a classic example of how the separation of powers doctrine can be violated. 

3. Griswold v. Connecticut
The Supreme Court uses contraceptives to rewrite the Constitution. 

4. Gitlow v. New York
A Communist helps destroy the Bill of Rights.

5. Wickard v. Filburn
Intra-state commerce and home grown wheat.

6. Heart of Atlanta Motel, Inc v. United States and Katzenbach v. McClung 
Interstate commerce and "morality"

7. Muller v. Oregon
Ladies, Laundries, And Eventually The Third Reich

8. Blaisdell v. Home Building & Loan Association
Mortgages in Name Only

9. Roe v. Wade
The progeny of Griswold v. Connecticut

10. Selective Draft Law Cases
Why the government owns your life