Constitutional Opinions: The Rule of Law Ten
Troy, Daniel E.
CONSTITUTIONAL OPINIONS by Daniel E. Troy The Rule of Law Ten T he law should be—and once was—an inherently conservative institution. The rule of law is fundamental to economic liberty and...
...In fact, the number of copies of Blackstone sold in colonial America far exceeded the number of lawyers, and the Commentaries were often consulted during the Constitutional Convention...
...6. Justice John Marshall Harlan (1833-1911...
...By insisting on fidelity to the text, he almost single-handedly has changed the way statutes are interpreted...
...The most obscure of these figures, Curtis lives on primarily through his dissent in Dred Scott...
...Justice Antonin Scalia (1936- ). Scalia is the dominant conservative voice on the current Court...
...Since his elevation to chief justice, however, he has been less reliably so...
...Other noteworthy candidates include Seventh Circuit Judges Richard Posner, left off because he has become more of a pragmatist than a principled judicial conservative, and Frank Easterbrook, whose influence has unfortunately been limited by virtue of his position as an appellate court judge...
...Justice Clarence Thomas, whose early decisions indicate that he may one day belong on this list, is omitted because his career is still in its nascent stages...
...His opinions frequently review the original understanding of the Constitution at great length, providing fodder for future generations, even when he is in dissent...
...That vision is a defining tenet of modern legal conservatism, which rejects the notion championed by liberal jurists such as Justice Thurgood Marshall that society will never be able to move beyond race if the law does not first take account of race...
...Today, liberals celebrate an independent judiciary, but reject the necessarily correlative notion of binding those judges by "strict rules and precedents...
...Thanks in large part to the Warren Court, since the mid-195o's the left has used the law to transform society, primarily along egalitarian lines...
...Madison's writing on the need to control factions foreshadows modern public choice theory, which teaches that powerful groups and coalitions are often able to use government to capture resources at the expense of the less focused, more disorganized majority...
...Second, at a time when few argued that courts should interpret the Constitution's text in accordance with its original understanding, Bork kept the flame of originalism alive...
...A champion of judicial restraint, Frankfurter fought against a Court that employed non-textualist doctrines like substantive due process to strike down child welfare laws, limits on wages and hours, and similar Progressive legislation...
...His writings provided the intellectual foundations for a return to originalism later taken up by Justices Antonin Scalia and Clarence Thomas...
...When the Constitution was written, Blackstone's Commentaries on the Laws of England were, according to James Madison, "in every man's hand...
...8. Justice Felix Frankfurter (18821965...
...On the Supreme Court, Story was an ardent defender of property rights doctrinal purity...
...Frankfurter also popularized doctrines such as mootness, ripeness, and standing...
...On the Supreme Court Taft championed the view that, in his words, "Our constitution rests on personal liberty and the right to property...
...But Frankfurter was a key opponent of the judicial activism practiced during the early part of the century by the so-called "Nine Old Men" (and, later, by the "Four Horsemen...
...He believed, though, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be bound by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them...
...Proving himself principled rather than opportunistic, Frankfurter continued to champion judicial deference to the executive and legislative branches even after liberal activists began using the Court to institute their own agenda...
...Today Black-stone's Commentaries are the most important source for scholars and judges who seek to understand the common-law background against which the Constitution was adopted...
...4. Justice Joseph Story (1779-1845...
...The most daring omission is Chief Justice John Marshall...
...Two recent books, Darien A. McWhirter's The Legal 100: A Ranking of the Individuals Who Have Most Influenced the Law, and Bernard Schwartz's Book of Legal Lists: The Best and Worst in American Law, celebrate the left's lawyer-heroes who assisted in this pernicious process...
...Although not a lawyer, Madison is justifiably known as the "Father of the Constitution...
...3. Alexander Hamilton (1757-1804...
...During the last half-century, however, American law has become politicized...
...Taft also sketched out an expansive view of the role of the executive that has influenced many legal conservatives, particularly those who worked in the Justice Department during the Reagan and Bush administrations...
...The Dred Scott majority declared that a slave was property of which a slaveholder could not be deprived...
...The American Spectator • May 1998 69...
...Since leaving the bench, Bork has tirelessly exposed the left's politicization of the law...
...Frankfurter may seem an odd choice, given his openly Progressive politics as well as his friendship with, and the frequent advice he gave to, FDR...
...A ny list like this is bound to leave out important figures...
...68 May 1998 • The American Spectator adoption of legislation freeing any slave who entered a free state...
...9. Judge Robert H. Bork (1927- ). Bork (for whom—full disclosure —I was a law clerk) has dramatically influenced the legal culture...
...7. Chief Justice William Howard Taft (18574930...
...Scalia has also led the Court's revival of the ancient and important notion that courts should presume that a legislature intends new enactments to be effective only from the date of passage, rather than retroactively...
...Although there is room for argument about who might be included, on some things there can be no doubt: Brennan, Thurgood Marshall, and Lenin do not make the cut...
...His Notes on the Constitutional Convention are vital to understanding the Framers' intent...
...Whatever their feelings about the current incumbent, conservatives generally believe in the importance of a strong executive to preserve and protect American interestsabroad, and to serve as a check against the legislature, which is institutionally and traditionally the primary threat to property rights...
...For example, Frankfurter dissented in the cases creating the exclusionary rule and mandating one-person, one-vote...
...It is these individuals, listed here in chronological order, who should be celebrated as best representing the rule of law: Sir William Blackstone (1723-1780...
...Predictably, McWhirter's list includes Justices Thurgood Marshall (34) and William Brennan (36...
...2. James Madison (1751-1836...
...In fact, Communist spy Alger Hiss was a Frankfurter protég...
...Relying on the Constitution's original understanding, a dissenting Curtis thoroughly repudiated that doctrine...
...In that case, a majority of the Supreme Court held the constitutional guarantee against being deprived of "life, liberty or property without due process of law" prohibited the Jurists who've defended the law against illiberalism...
...He was indeed a strong proponent of judicial restraint while a justice...
...Madison also took the lead in drafting the Bill of Rights...
...In more recent times, this theory of "substantive due process" — which one scholar labeled as nonsensical as saying "green pastel redness"—was used to justify the Court's finding in Roe v. Wade of a "liberty interest" that included the right to an abortion...
...His broad view of federal power, although perhaps appropriate for the time, set the stage for the dramatic expansion during the New Deal of federal power into almost every aspect of the lives of individual Americans...
...Among the values American law has traditionally served are stability, rationality, and equal treatment regardless of economic condition, all truths conservatives hold dear...
...The Federalist Papers, which he wrote with Alexander Hamilton and John Jay, are a political science masterpiece...
...In making this decision, the Supreme Court poured substance into what had previously been understood as merely a procedural guarantee...
...A champion of what he called the "old law," he invoked the Constitution's Contracts Clause to void state confiscations of land and corporate property...
...Conservatives often cite his three-volume Commentaries on the Constitution (1833) for the light they shed on the Constitution as it was understood in the early nineteenth century, well before the Warren Court transformed it into an excuse for judicial imperialism...
...Soon after Taft left the Court in 1929, the Court began tolerating unprecedented violations of the rights to contract and to hold property...
...The rule of law is fundamental to economic liberty and prosperity, as well as to constraining government power...
...DANIEL E. TROY, a Washington lawyer, is an associate scholar of legal studies at the American Enterprise Institute and the author of Retroactive Legislation (AEI Press...
...Similarly, Schwartz's Top io contains the usual suspects, beginning with Chief Justice John Marshall and running through Justices Oliver Wendell Holmes, Earl Warren, Brennan, and Louis Brandeis...
...5. Justice Benjamin Robins Curtis (1809-1874...
...One of the most impressive Americans ever, Taft was named solicitor general at age 32, and went on to be the only person to serve as President and Chief Justice...
...since the late 1930's, the Court has virtually abdicated its assigned position as the defender of economic liberties against a grasping majority...
...Hamilton's treatment of the proper role of the judiciary, which he famously considered the "least dangerous branch," is the touchstone for the modern conservative view of judges...
...Marshall's legacy is decidedly mixed...
...Amazingly, it even includes Vladimir Lenin (79), who was a lawyer, in addition to being an autocrat and a murderer...
...First, together with Richard Posner and other "law and economics" or "Chicago School" figures, Bork showed that the purpose of the antitrust laws was to promote efficiency and consumer welfare, and not to be against size for its own sake...
...Hamilton championed an independent judiciary "as an intermediate body between the people and the legislature in order...to keep the latter within the limits assigned to their authority...
...These notions restrain the ability of courts to intervene in disputes other than live controversies in which people are suffering real injuries...
...Some may protest the absence of Chief Justice William Rehnquist...
...Harlan is best known today for his dissent in Plessy v. Ferguson, in which he articulated the vision of a color-blind constitution...
...he's cited by liberals and conservatives alike, which can cause problems: Activist judges too often misconstrue his 1819 statement in McCulloch v. Maryland that "it is a Constitution we are expounding" as an excuse for judicial legislation...
...As might be expected, focusing on the individuals who best represent, and who have had the most influence on, current conservative legal thinking leads to a very different list...
...They capture the Founders' effort to create institutions so that "ambition could counteract ambition...
Vol. 31 • May 1998 • No. 5
