Mises Institute: When it comes to Supreme Court cases, what do you think were some of the most damaging to the cause of liberty?
Judge Napolitano: 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.
Mises Institute: 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?
Judge Napolitano: 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.
Judge Andrew P. Napolitano joined the Mises Institute in August as the Institute’s Distinguished Scholar in Law and Jurisprudence.
