Andrew Napolitano Explains The Supreme Court’s Worst Decisions


The following post originally appeared on the Ludwig von Mises Institute’s website. It is based on a conversation the Institute had with Judge Andrew Napolitano about the Constitution and the American political system.

Mises Institute: Why is understanding constitutional law and its history important? The text of the document is pretty short, so can’t we just read it for ourselves and know what it says?

Judge Andrew P. Napolitano: The Constitution proclaims itself to be the Supreme Law of the Land. It was written to create, define, and restrain the federal government. If history is prologue, it is important for all concerned about the overreach of the government today to understand how we got to where we are today; and the history of that is essentially a study of the history of the debates over the implementation of the powers set forth in the Constitution.

As for reading the Constitution in order to understand it, that is no doubt what its authors intended. However, as is well known, the big government impulses of those in government have rendered most of the plain language in the Constitution meaningless. Thus, it is nearly impossible to comprehend the meaning of the Constitution without understanding about 200 Supreme Court cases interpreting it.

MI: When it comes to Supreme Court cases, what do you think were some of the most damaging to the cause of liberty?

APN: Without sounding cynical, my answer is: Almost all of them. Here is a short list of the most constitutionally offensive cases: Marbury v. Madison, which establishes the federal government as the final judge of its own power; McCullough v. Maryland, which establishes the primacy of the federal government over the states and establishes the concept of implied federal power; Dred Scott v. Sanford, which establishes the principle that a class of human beings can be defined as non-persons because of an immutable characteristic of birth; Wickard v. Filburn, which permits the Congress to regulate personal, private, and even trivial behavior; Korematsu v. United States, which permits the attribution of guilt and the infliction of punishment based on an immutable characteristic of birth; Roe v. Wade, which permits murder based on the age of the victim; and National Federation of Independent Business v. Sebelius, which permits the Congress to tax any event or non-event it wishes.

MI: Are there any easy fixes? Could we just tweak the text of the Constitution in certain places to greatly improve things? If so, what would you change? If not, why not?

APN: Because the Constitution is only as effective as an instrument to guarantee liberty as is the fidelity of those in whose hands it has been reposed for safekeeping to its underlying principles, the short answer is: Have a majority of Supreme Court justices committed to the plain language and original intent of the document, and the preservation of the natural law? However, if I were free to do so, I’d change “We the People …” to “We the States …” I’d define the regulation of interstate commerce as “keeping the movement of goods between merchants across interstate borders regular,” I’d add “explicitly” to the Tenth Amendment, and I’d repeal the 16th and the 17th amendments.

MI: In recent months, the issue of nullification has become important, and it has been actually happening. Colorado, for example, has nullified federal laws about marijuana. Moreover, there have been efforts surrounding provisions of the National Defense Authorization Act, and historically, numerous states essentially nullified the federal law behind the national ID card. Are these efforts on firm constitutional ground?

APN: They are on firm historical ground, and firm constitutional ground as the Constitution was understood by those who wrote it.

MI: We’ve been talking about the 1787 Constitution of course, but there was one that came before it, written in 1776, and known as the Articles of Confederation. Many libertarians point to the newer constitution, say it was not an improvement, and that it replaced the more de-centralist Articles. In light of this, should we still be defenders of the current constitution, and if so, why?

APN: I have spent my entire professional career defending the Constitution; and that can be likened to playing catch with jell-o or shoveling against the tide. The Articles of Confederation permitted the states to become tyrants, and the Constitution — as interpreted over the centuries — has permitted the federal government to become tyrannical. The resolution of this dilemma will require the entry into all three branches of the government of persons committed to natural law principles. That means they’d believe in the primacy of the individual over the state and the intrinsic inability of government to do anything beyond enforcing the natural law.

Personal Liberty

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  • Stuart Shepherd

    Shouldn’t you add the recent decision to nullify the Defense of Marriage act because the supreme court said it knew that Congress had passed it motivated by hate towards a particular group of people (homosexuals) and if anyone disagreed with them they were homophobic?

    • Gill O’Teen

      Don’t overlook the decision which imposed obummerkare-tax upon an unwilling majority.

      • smilee

        The court determines if it is allowed under the Constitution and that is often in conflict with the majority and the majority or the minority should not be of concern to the court and it was not with Obamacare it only found that it was allowed under the Constitution and that was the right decision as it does allow it and it is congresses job, not the courts to change the law.

        • Robert Messmer

          Too bad the Administration didn’t lose “points” for not knowing that they had passed a tax bill, instead of a health care bill as they thought.

          • smilee

            They knew it was a tax bill and said so in oral arguments before the courts as they argued there it was a tax andthe court agreed. It is not a health care bill it is a health care insurance bill

    • lakeside227

      DOMA was unconstitutional because the Constitution grants NO authority to the federal government to define marriage. It grants the federal government no power and does NOT prohibit that power to the states, therefore, under the 10th Amendment, the power belongs to the states and the People of the states. Just like education, abortion, marijuana, labor, etc., etc.

    • Robert Messmer

      It was Andrew Napolitano’s list, not yours. You can add, subtract any SCOTUS decisions you wish to on your list. I would be more inclined to put DOMA on the list of Stupidest Laws Created by Congress.

  • Hank

    INapolitano is a serial liar just like obama, she is really the bottom of the barrel. Perfect for the Obama administration !!!!!

    • Gill O’Teen

      Um, you are aware that Judge Napolitano and Janet Napolitano are two different people, aren’t you?

    • Rob Reiken

      Your mixing Janet Napolitano up with Andrew Napolitano did u not read the article? They certainly are not on the same side.

  • Warrior

    Now here is an “easy” choice to be named a Supreme Court Justice instead of the “political hacks” that currently reside on the “progressive” side of the court.

  • Ed Burns

    Here comes de Judge! Andrew for President!

  • Carl-Cathy Wisnesky

    Great job Judge. Now we, the people, have a bit of understanding as to how the Decline & Fall of the United States has progressed to the point we are at today.

    • peter

      Unfortunately your comment is applicable not only to the USA but to every nation on the Planet, which is why we are all headed in the wrong direction. Will the bad guys prevail? Most probably, unless the young citizens of the world get organized, form a unified body and get the power to deal with the bad guys, not by force but by intelligent dialogue and accession to those positions whereby they make the correct decisions to benefit all and not just the few. I think that that is what the youth of today really desire and can actually achieve if they start a new system with clear aims and objectives in mind and start by getting together and being organized. It will take just one individual with leadership qualities based on humanitarian instead of wanton needs to make the difference. A Hitler with morals if you will. Don’t take up arms but get together to vote out the evil and create a world where everybody is included. Better a friend than an enemy and nowadays there are many who are able to do that. May they succeed and work towards the following:- I destroyed an enemy today – I made him my friend.

    • Alex

      Wow…so it took one article explaining the position of one man to encapsulate the myriad problems that exist in this wretched country.

      You are very simple and should expand the breadth reading materials.

      • Carl-Cathy Wisnesky

        Seems like you have a comprehension problem when reading. We said “a bit”, which means “a part or portion”. The Judge’s article states only one point of many problems facing our country, so your comprehension of our comment is incorrect. Also, the US may have problems, but it is by no means “wretched” & is better than 80% to 90% of the rest of the world.

  • paendragon

    All liberal “laws” (What Mark Levin describes as “positivist” laws) are, in fact, crimes.

    The only principle any one ever need agree to, is of course the Golden Rule of Law which defines all situational morality as “Do Not Attack First.”

    From this agreement, we gain trust, progress, and civilization; this “social contract” means our only real right is to not be attacked first, and our only real responsibility is to not attack (therefore innocent) others first. Period.

    The rest are all symptoms, and all sub-sequent valid legislation depends on that Rule: Every law is an if/then warning which says, in effect: If and when you choose to attack first in this, that, or those ways, then this, that, and these punishments will apply to you.

    Bad laws are crimes because they attack first. At “best” they are only ‘ethical’ lists of rules and excuses amerliorating bad, attack-first criminal premises.

    A “Judge’s” only job is to determine rational cause-and-effect (who started it) and all irrational criminal excuses or alibis are based on the opposite, victim-blaming slanderous pretense.

    It should therefore be easy for any judge to see if a law is bad (an attempt to deprive citizens of due process, by disregarding any need for evidence by slanderously insisting on asserting that they are Guilty Until Never Proven Innocent, and so must impossibly prove a negative in order to defend them selves).

    Bad laws are slanderously “pre-emptive” first attacks, like all gun control laws:

    “Since you DO own a gun, therefore you WILL use it to commit some crimes, SO we must now stop you by ‘defensively’ attacking you first – for your own good, of course!” There’s no if/then; they are threats, not valid warnings. Pretty much every “law” any liberal ever passes, is some form of extortion like this.

    Guns exist. They will never again not-exist. More laws do not equal order. In general, no force or police or laws are necessary among free citizens who can and will govern themselves, while the opposite is: no amount of force or police or laws are enough for a people who CANNOT – or will not – govern themselves.

    Other bad laws depend not on what your free-will choice of what you might DO might eventually be, but on their subjective yet objectifying definition of what you ARE: in islam’s prejudicially slanderous us-versus-them and might makes right sharia code, all weaker groups – foreign infidels, women, children, slaves – are openly and officially pre-discriminated against, encoded right into their system of criminal laws.

    Bad (“defensively pre-emptive”) laws are crimes because they attack first.

    • smilee

      The supreme court does not determine if a law is good or bad just weather it is permitted under the Constitution.

      • paendragon

        NO, they don’t even do that any more.
        Besides, the Constitution was designed to prevent the government from attacking the people first, in so many ways, listing the most important symptoms of this most basic Golden Rule of Law and morality.

        • smilee

          Somebody snookered you it has never been that way

      • slstanley1

        My observation is that the Supreme Court does not determine if a law is good, bad, OR constitutional. They take the issue at hand, and if they feel that a given group might be the underdogs in a certain situation (fair or not is irrelevant), they give the broadest possible interpretation of the Constitution to make it so that group has the “rights” and privileges they demand, whether it was originally constitutional or not.

        • smilee

          There is no evidence of that but your free to believe absent any evidence but you would be wrong. They determine if it is constitutional

  • Alex

    Andrew Napolitano goes against the vast majority of legal scholars by not placing “Citizens United” on his list.

    • Sylvin

      Alex, who pays you to make all your stupid comments on this site? Is trolling libertarian websites a lucrative business for you, or are you just really bored? The judge doesn’t care about the vast majority of legal scholars and what they think. Don’t you get that; is that not obvious to you? His point is that he believes the “majority of legal scholars” have corrupted the laws of the land because they have lost focus of the original intend of the constitution and the importance of natural laws. We are no longer a nation under the rule of law, but a nation under the rule of man disguised as the rule of law.

      • real talk 1


    • real talk 1

      The states should have the power against the likes of this administration they are very dishonest. this country was meant to be run by honest people not liars and thugs I hope this president doesn’t think he’ll be remembered as some kind of respectable commander in chief when nothing could be further from the truth especially in the black communities after all what has he done for them all his hate for the country has only made the black community suffer that much more, if he gives amnesty they will most definitely be at the bottom of the food chain in prosperity or anything else.

    • Charles Temm

      Vast majority? Who came up with that?

      It seems pretty obvious that those who oppose “Citizens” tend to be statists of either the “Left” or “Right” and those who support it are those who are constitutionalists. Using that as a determiner, it becomes obvious it’s a political bias, rather than ‘legal’ one that highlights their reasoning for opposition.

  • smilee

    It created what government could do and not do and not to restrain the federal government or the state governments beyond the definitions laid down which are quite broad and do not give superiority to the states nor does it define the size of government. “General Welfare” is very broad and that is the clause that allowed the federal government to create Obamacare as that is what was cited for its constitutionality by the court. Marlbury v Madison is regarded by the vast majority of scholars as one of the most important decisions and what has probably been the decision that has allowed us to keep the Constitution over time and no challenges to it have been heard by the court in the 210 years since it was written. . Nullification is not allowed in the Constitution and the tenth amendment (often wrongly applied by those on this site) makes clear. If power is given the federal government or denied to the states then that says that when in conflict the fed gov law prevails and the courts have found this many times and did so in Obamacare. APN is a nut case, take the power away from the people and give it to the states (government) is taking away your right to liberty and it is clear that he has an agenda to make major changes because he does not like the Constitution and wishes to destroy much of it, certainly not to improve on it..

    • Sylvin

      If you really believe that you really don’t understand the founding, natural laws and rights, or what liberty and freedom really is. You must believe in the other side of the argument – people need to be controlled by somebody, and if so why not by you and your like minded buddies. You really should read more about the founding and the founding father’s original intent. Not because their intent is the law, but to understand what their intent was and why it was so important to ensuring individual liberty and freedom. State nullification won’t take away people’s natural rights, but it would definitely prevent you from granting people additional rights to things people actually have to produce before they can be obtained…

      • smilee

        Their intent is written in the Constitution itself and it is the only binding document and in the absence of detail definition where it lacks it, the court defines it and that is how they intended it to work and that is how it works even today. If they had wanted what you say as, their intent they would have put it in the Constitution, Then like now there was not agreement on the intent and sometimes it applies and sometimes it does not. Obamacare was decided on original language and that was their intent as that is how they wrote it. Court decisions are decided on what they left us in the Constitution and not their personal opinions of what some wanted but compromised to get a Constitution and left article five to deal with any deficiency they could not resolve at the time or changing times required. It is you who does not understand the Constitution or how Constitutional law works. .When there are decisions you do not like you go and try to impose your bias on it rather that try to understand why the court did what it did. The court does make mistakes but mostly they get i right. The 13, 14 & 15 amendments changed a lot of the founding precepts that they did not fully define and these amendments and the civil war changed many of them.. I argued against the change from “We the People” to “We the State” as it would take liberty from the people to give it the government and you conclude I want people controlled by somebody is just your bias speaking and reveals your spinning out of control injecting your bias into it and ignoring real facts. State nullification would render the Constitution impotent as it would undermine the powers given the federal government by the Constitution causing conflict and gridlock and that is why the courts have mostly ruled against these nullification laws as they are unconstitutional and they are right in these cases.

    • lakeside227

      Aw geez, you again???? Still trying to find someone, anyone, who is interested in listening to your misguided opinions???

      Try again simple smilee, you wiffed it again….

      • smilee

        Why not try and rebutt my position or is that too deep for you or do you know I’m right and you do not want admit that after all the court did agree with me on Obamacare so you cannot rebut that

        • lakeside227

          I’ve already told you simple smilee, your ‘points’ are sooooo wrong and soooooo simple, they aren’t WORTH refuting. I prefer to just refute YOU.

          • smilee

            Face it, my comments are fr to deep for your simple mind to comprehend that is why you attack me rather than my comments

          • lakeside227

            Oh simple smilee, you do provide me with a lot of enjoyment….

  • ireAmerica

    The Executive may Order, the Supremes may Decide and Congress may Legislate – but – any unConstitutional enactments, are null and void.

    • slstanley1

      Maybe so, but if you disobey these directives, you’ll end up in jail just the same.

  • Tim Mayeaux

    why were the DATES of these rulings not associated with the name ? Could it be it might shed light on the first tyrant to occupy the white house ? Claims to have freed slaves, when in reality HE enslaved us all ! Death to Tyrants ! LIBERTY