Below The Beltway

George Will takes John McCain to task for his recent statement that last week’s Gitmo ruling from the Supreme Court was the “worst decision in history”:

The day after the Supreme Court ruled that detainees imprisoned at Guantanamo are entitled to seek habeas corpus hearings, John McCain called it “one of the worst decisions in the history of this country.” Well.

Does it rank with Dred Scott v. Sanford (1857), which concocted a constitutional right, unmentioned in the document, to own slaves and held that black people have no rights that white people are bound to respect? With Plessy v. Ferguson (1896), which affirmed the constitutionality of legally enforced racial segregation? With Korematsu v. United States (1944), which affirmed the wartime right to sweep American citizens of Japanese ancestry into concentration camps?

Libertarian Party Presidential candidate Bob Barr has gotten into the mix by challenging McCain to a debate on the issue of just which decisions in the 200+ year history truly qualify for being “the worst”:

Atlanta, GA — “The U.S. Supreme Court affirmed the importance of the ancient writ of habeas corpus, one of the bedrock guarantees of American liberty,” says Bob Barr, the Libertarian Party candidate for president. The procedure, which predates America’s founding in British legal tradition, forces the government to justify an arrest in court. However, Sen. John McCain called the decision “one of the worst decisions in the history of this country.” That is quite charge given a legal history that includes Supreme Court opinions such as Dred Scott, observes Barr.

“The Court’s habeas corpus decision was a victory for all Americans more than any particular litigant, since it affirmed the duty of the executive branch to obey the law,” Barr explains. The president and his aides have been claiming to possess extravagant and unaccountable authority, and the justices clearly said “no more.” In fighting terrorism “we must not sacrifice those liberties which make America the unique nation that it is,” Barr adds.

“I challenge Sen. McCain to debate the role of habeas corpus and other constitutional protections for civil liberties in the fight against terrorism,” says Barr. Sen. McCain, the president, and almost the entire Republican Party apparently believe that our freedom is a luxury to be sacrificed whenever the president wishes. “That is not the America I know and love,” Barr affirms, “I believe the government’s most fundamental duty is to respect our liberties, and the executive branch must be held accountable for every new power that it acquires over the American people.”

Barr suggests that he and Sen. McCain approach such leading legal organizations as the ACLU and Federalist Society to jointly host a debate. “I’m ready to meet Sen. McCain any time and any place,” says Barr.

I doubt McCain will respond, but what about the question itself.

What are the worst Supreme Court decisions in history.

I agree with Will that Dred Scott v. Sanford, Plessy v. Ferguson, and Korematsu v. United States all belong on that list, but I’d also add these which I list in no particular order:

1.  McConnell v. Federal Election Commission — the case that upheld the most offensive portions of the McCain-Feingold campaign finance law.
2. Kelo v. City of New London — One of the most egregious examples of derrogation of private property rights in recent memory.
3. Hawaii Housing Authority v. Midkiff — A precursor to Kelo. In this case, the Supreme Court upheld a Hawaii law that amounted to nothing less that redistribution of private property.
4. Berman v. Parker — Another precursor to Kelo. Here, the Court ruled that the Fifth Amendment’s provison that clearly limited the eminent domain power to instances were property was put to a public use should be read to include cases where private property is taken for a public purpose, even if it isn’t used for public property. It was the first step down the road to the theft of Kelo’s property 50 years later.
5. Wickard v. Filburn — In this Depression-era case, the Court ruled that Congress’s power under the Interstate Commerce Clause included the power to regulate a farmers production of wheat that would never enter interstate commerce and, in fact, would never even leave his farm.
6. McCulloch v. Maryland — In this case from 1819, the Supreme Court upheld the Constitutionality  law that created the Second Bank of the United States. Despite the fact that creation of a national bank is not among the powers granted to Congress by Article I, Section 8 of the Constitution, the Court held that the power was part of the “implied powers” created by the “necessary and proper clause.”

And that’s just a start.

You’ll notice a trend in each of these case; in their own way, they each helped to increase the power of government at the local, state, or federal level beyond the limitations imposed by the Constitution usually at the expense of individual liberty.

That, Senator, is what makes for a bad Supreme Court decision.