Constitutional Law 103: Best Supreme Court Opinions...
And Why They Give Hope To America Today
Those readers who are familiar with my commentaries on current legal and political issues (www.henrymarkholzer.com and www.henrymarkholzer.blogspot.com), my Internet course entitled Constitutional Law 101: Basic Course , and my Constitutional Law 102 course entitled “Worst Supreme Court Decisions” know the perspective from which I view constitutional law: I am an Originalist— meaning I believe that, at the threshold, the Constitution means what it says and, if there is doubt, it means what it meant to those who wrote it and to others of that time. While some Constitutional provisions are clear (e.g., the age to be President) but others more difficult to understand (e.g., “establishment” of religion), the analytic task is the same no matter what.
During my law school years and for too long after, the Warren Court was in full swing, rewriting the “Living Constitution”[1] by contributing to the destruction of federalism, erasing separation of powers boundaries, “incorporating” provisions of the Bill of Rights against the states, fostering the administrative state—and, in the process, undermining individual rights, marginalizing limited government, subverting free markets, relinquishing national sovereignty. So, too, have been that Court’s successors.
Because of this perversion of the United States Constitution, in all my years practicing, teaching and writing there has been a downward spiral in my respect for most judges, especially most of those who have served, and now serve, on the Supreme Court of the United States.
My disrespect for the Court’s collectivist-statist [2], intellectually dishonest decisions has hit rock bottom in the last decade-or-so. Affirmative action, national security, eminent domain, prisoner’s rights. And more.
As a result, my writingand teaching has had an unmistakable negative, sometimes even cynical tone.
While I continue to believe that my reaction is well justified, I recognize the danger of painting with too broad a brush—by not recognizing the occassional opinions (though not necessarily majority ones) which have respected individual rights, understood the necessity of limited government, recognized the efficacy of free markets, realized the danger of national sovereignty’s erosion and national security’s deterioration.
Hence, I have now created Constitutional Law 103: Best Supreme Court Opinions . . . And Why They Give Hope To America Today. Over the next few months I will post ten of those opinions, with my own introduction, to illustrate some of the principles which, in a better world, would inform Supreme Court adjudication.
By what criteria do I deem a Supreme Court decision among the “Best”?
The “Best” Supreme Court opinions (majority, concurring and/or dissenting) are those that have knowledgeably articulated the Constitution’s republican institutions and their promise of individual rights, limited government, free markets, national sovereignty and self-defense.
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.
By “limited government,” I mean one in which federal power is both expressly delegated and enumerated, and the Tenth Amendment means what it says.
By “free markets” I mean laissez-faire capitalism, where the government’ role is only to enforce objective criminal laws punishing the initiation of force and fraud.
By “national sovereignty” I mean American nationhood, which reserves to the people of the United States and their elected representatives the power to control our own destiny free of the dictates of other nations, let alone by international governmental and non-governmental organizations.
By “self-defense” I mean the right and duty of the United States government to act in all situations where our physical and economic safety is jeopardized by foreign state and non-state actors.
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. Most of that shaping has been to institutionalize collectivist-statist, and thus nonconstitutional and unconstitutional principles.
But through the years, some opinions have shaped our Constitution differently.
It is those I will present on this website for the benefit of laypersons who want to become knowledgeable about what Supreme Court opinions could be like, and what a few have been.
Access to the opinions is free of charge.
There is only one way for those interested in these opinions 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 “Best” opinion, a brief description of its subject, and a link to this page, from which the opinion can be accessed.
At the bottom of this page(s) there will be an ongoing list and brief description of each “Best” opinion, and a link to it. Postings will appear irregularly, at least every few weeks.
If you find Constitutional Law 103: Best Supreme Court Opinions . . . And What They Mean For America Today to be of value, please forward each blog notification to as many other interested people as you can.
ENDNOTES
[1] Many lawyers and laypersons 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).)
[2] 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).
TEN OF THE BEST SUPREME COURT OPINIONS
1. McDonald v. City of Chicago
Justice Thomas rejects “Incorporation,” protecting gun rights via the “Privileges or Immunities Clause” of the Fourteenth Amendment. This is the most important opinion ever written concerning the meaning of Section 1 of the Fourteenth Amendment.
2. Plessy v. Ferguson
"Separate But Equal"
3. Korematsu v. United States
Justice Jackson speaks for innocent American prisoners.
4. Federal Communications Commission v. Pacifica Foundation
Brennan vindicates Carlin’s “Seven Dirty Words.”
5. Roe v. Wade
My introductory comments to Justice William Rehnquist's dissenting opinion in Roe v. Wade -- the "abortion on demand" case--and the opinion itself.
6. Blaisdell v. Home Building & Loan Association
Mortgages in Name Only
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7. Runyon v. McCrary
Being forced to make a contract.
8. Fullilove v. Klutznick
Preferences for everyone from Negroes to Aleuts
9. United States v. Lopez
Too far to stretch the Commerce Clause
10. Grutter v. Bollinger
Racism, at its modern-day worst
