By Troy, Daniel E.
The American Spectator , Vol. 31, No. 5
Jurists who've defended the law against illiberalism.
The law should be-and once was-an inherently conservative institution. The rule of law is fundamental to economic liberty and prosperity, as well as to constraining government power. Among the values American law has traditionally served are stability, rationality, and equal treatment regardless of economic condition, all truths conservatives hold dear.
During the last half-century, however, American law has become politicized. Thanks in large part to the Warren Court, since the mid-i95o's the left has used the law to transform society, primarily along egalitarian lines. Two recent books, Darien A. McWhirter's The Legal loo: 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 lawyerheroes who assisted in this pernicious process. Predictably, McWhirter's list includes Justices Thurgood Marshall (54) and William Brennan (56). Amazingly, it even includes Vladimir Lenin (79), who was a lawyer, in addition to being an autocrat and a murderer. Similarly, Schwartz's Top lo contains the usual suspects, beginning with Chief Justice John Marshall and running through Justices Oliver Wendell Holmes, Earl Warren, Brennan, and Louis Brandeis.
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. It is these individuals, listed here in chronological order, who should be celebrated as best representing the rule of law:
1. Sir William Blackstone (1723-1780). When the Constitution was written, Blackstone's Commentaries on the Laws of England were, according to James Madison, "in every man's hand." 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. Today Blackstone'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.
2. James Madison ((1751-1836). Although not a lawyer, Madison is justifiably known as the "Father of the Constitution." His Notes on the Constitutional Convention are vital to understanding the Framers' intent. The Federalist Papers, which he wrote with Alexander Hamilton and John Jay, are a political science masterpiece. They capture the Founders' effort to create institutions so that "ambition could counteract ambition." 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. Madison also took the lead in drafting the Bill of Rights.
3. Alexander Hamilton (1757-1804). 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. 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." 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." Today, liberals celebrate an independent judiciary, but reject the necessarily correlative notion of binding those judges by "strict rules and precedents."
4. Justice Joseph Story (1779-1845). On the supreme court, story was an ardent defender of property rights doctrinal purity. 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. …