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Judge Napolitano on the Worst Supreme Court Decisions

Judge Andrew P. Napolitano joined the Mises Institute in August as the Institute’s Distinguished Scholar in Law and Jurisprudence. During Mises University in July, Judge Napolitano taught what David Gordon described as a “conference within the conference” and “a masterful survey of how the Supreme Court has interpreted the commerce clause, from Gibbons v. Ogden (1824) to the present.” This summer, the Mises Institute spoke briefly with Judge 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?

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The Judge is my Presidential pick if Dr. Paul won't run.

Although having the Judge on the Supreme Court would be a wondrous event.

Love the Judge……but I don’t agree with him

This is a perfect example of my philosophy regarding “station in life” If the judge hadn’t spent a lifetime educating himself on the Constitution, and this is also how he makes his living, would he be more open to the fact that he might not be on the correct side when it comes to Liberty between the USC vs the AOC?

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?

The Judge: 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.

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.

I agree with the ladder, but at least with the former you could have voted with your feet or taken the Jefferson approach….”Those the govern best , govern least”. A state government would have been easier to control by the locals….if not they could have split into smaller….smaller is better in government…..always.

The intent of the Constitution was to arrive exactly where we are. , The “Bill of Rights” were never part of the debate…….in the Georgia Constitution they are the first Article!

DJP333's picture

Judge Nap

needs to be on the Supreme Court or at least Attorney General.

"It’s not pessimistic, brother, because this is the blues. We are blues people. The blues aren’t pessimistic. We’re prisoners of hope but we tell the truth and the truth is dark. That’s different." ~CW