This Commentary will consider four authorities who are hardly considered standard-bearers of the Left: Aristotle, Edmund Burke, James Madison, and Justice Oliver Wendell Holmes. Insights from Aristotle, Burke, Madison, Holmes, and Chomsky will be combined into following set of propositions: (1) the Supreme Court has a constitutional and historical obligation to resist tyranny and other forms of constitutional perversion and factionalism; (2) the Supreme Court has a unique duty and capacity to combat abuses of private power; (3) private corporations and the well-to-do have gained so much power that they have become a dangerous faction that is turning our government and society into a perverse oligarchy, hostile to the common good of all; (4) the Supreme Court has acted illegitimately by enhancing rather than resisting the strength of this faction. I am not asserting that any of these five thinkers would agree with these four propositions or their application to American society. Instead, I am utilizing these men's thoughts to develop a framework for evaluating different aspects of our constitutional culture, be it the Supreme Court or the escalating power of the affluent. This analysis is not concerned with what the author of a statement made in the remote past meant by it, so much as with what he in the present can make it mean.
James G. Wilson,
Noam Chomsky and Judicial Review,
44 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol44/iss4/4