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Individual Rights & the Supreme Court
[July 15, 2002]

By Nicholas Provenzo

Note: The following is CAC Chairman Nicholas Provenzo's introduction to CAC's "Year in Review" Report on the US Supreme Court.

A proper government defines and protects the individual rights of its citizens. Under such a government, the courts play a crucial role; it is through the courts that men are able to settle disputes peaceably according to predetermined legal rules. It is these legal rules that guide the judiciary—both substantively and procedurally—in achieving justice in the thousands of trial verdicts and appellate opinions that are issued each day in a functioning society. It is also to these legal rules that citizens look to find their rights substantively defined, as well as to find the determinative, logical procedures that they must follow in order to secure these rights in times of conflict.

At the pinnacle of a proper judicial system is a supreme court—as it is in the American republic. The United States Supreme Court represents the final arbiter for disputes, whether they are between individuals, corporations, or governments. It is charged with the mission of not only interpreting and applying statutes, but it also has the solemn responsibility of interpreting the enumerated powers granted to the U.S. government under the Constitution. It is the Supreme Court’s fundamental task to ensure for all Americans that the government’s exercise of its powers remains wedded solely to the principle that animates the Constitution—the doctrine of individual rights.

Yet without a consistent understanding of the principle of individual rights, the Supreme Court (and the lower courts) are rudderless in their interpretation of the Constitution. In the Center’s review of the opinions issued during the Supreme Court’s October 2001 term , we expose a conflicted and inconsistent Court. The Court itself ruled in favor of individual rights in only 55% of the cases in the past term; the rest of its cases were adjudicated along lines that restricted rights and unjustifiably expanded the power of government.

In Tahoe Preservation Council v. Tahoe Planning Agency, for example, the Court equated property development with the victimization of nature, promoting specious environmentalist claims and expanding the scope of arbitrary government power against property owners. In United States v. Fior D’Italia, Inc., the Court allowed the Internal Revenue Service to continue using the "aggregate estimation" method for taxing tip wages, although the results of this method were proven to be grossly inaccurate in determining an individual’s tax liability. In Ashcroft v. American Civil Liberties Union, the Court upheld the "community standards" test for determining the legality of pornographic websites, providing lower courts with a subjective, unworkable standard that squelches the right to free speech. The practical result is that merchants are left with no guidance on how to avoid sanctions under the law.

Although often portrayed as the great champions of the Constitution, the best individual justices, Clarence Thomas and Antonin Scalia, voted in favor of individual rights only 75% of the time. In Board of Education v. Earls, Justice Thomas held that random drug testing of public school students who participate in extracurricular activities did not trigger Fourth Amendment protections against unreasonable searches. Thomas justified the policy on the ground that it was "a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its school children." And in City of Los Angeles v. Almeda Books, Inc., Justice Scalia concurred with the Court’s decision permitting city governments to use zoning ordinances to prohibit businessmen from operating commercial enterprises offering adult entertainment. Scalia believed that empirical studies finding a statistical correlation between crime rates in certain urban areas and types of businesses empowered local governments to violate the rights of individuals to speak their views, to create businesses, and to engage in freely chosen transactions. Sanctioning government coercion to eradicate drug use or control (indirectly) adult entertainment businesses—at the cost of the rights of personal liberty, property, free contract, and free speech—are hardly pro-individual rights positions.

Clearly there is a disconnect between the principle of individual rights and the Court’s voting record. The Center considers this problem to be philosophic, reflecting the larger conflict in American culture between the Founders’ view of individualism and freedom versus the modern (and now dominant) belief in collectivism and state paternalism. As evidence of this sea change in American culture, in slightly less than half the cases in which state paternalism conflicted with the rights of individuals, state paternalism won.

The Center does not expect the Court to change the legal landscape in a single case or in a single term, but it does expect the Court to lead this country in the right direction—a task it has yet to achieve. Thus, the need for a focused assessment of the Court’s jurisprudence, appraising how the Court and individual Justices perform according to the fundamental moral standard of each individual’s right to life, liberty and property. In the end, the Center hopes that the analyses it provides in these annual reports will aid in understanding both the principle of individual rights and how these rights are applied and protected under the Constitution.


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