Americans have long looked to the Supreme Court as the last bastion of their liberties and as the one institution that stands as a check against the encroachments of an Executive Branch eager to expand its power and and a Legislative Branch intent on satisfying the whims of a grasping majority. As Robert Levy and William Mellor demonstrate in their must-read book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom,
Though they deals with at-times complex legal issues, Levy and Mellor have done a great job in this book of making those issues understandable even to someone without legal training. For each case selected, they set forth the facts of the case, their position on where the Court got it wrong, and the consequences that have developed from that decision. They also deal separately with two of the most controversial Supreme Court cases of the past 30-odd years; Roe v. Wade and Bush v. Gore. For different reasons, they fail to include either case in their “Dirty Dozen” list largely because they believe that the Court at least got the result right even if one could find problems with the way they got there.
The “Dirty Dozen” list itself is interesting for what it includes:
- Helvering v Davis — where the Supreme Court interpreted the “General Welfare” Clause of Article I, Section 8 to allow the establishment of the Social Security System
- Wickard v. Filburn — where the Court interpreted the Interstate Commerce Clause to permit Congress to regulate economic activity that occurs entirely within the border of a single state
- Home Building & Loan v. Blaisdell — where the Court upheld a Minnesota law that imposed a three year moratorium on mortgage foreclosures despite the clear language of the “Impairment of Contracts” Clause of Article I, Section 10
- Whitman v. American Trucking Association — where the Court permitted virtually unfettered rulemaking by Administrative Agencies with no Congressional review despite the clear language of Article I that legislative power shall be vested in Congress
- McConnell v. FEC — where the Court upheld the McCain-Feingold Act’s restrictions on political speech
- United States v. Miller — the Supreme Court’s muddled and confused decision on the Second Amendment which was fortunately superseded by Heller v. District of Columbia
- Korematsu v. U.S. —- where the Supreme Court acquiesced in the forcible interment of every Japanese-American on the West Coast of the United States during World War II
- Bennis v. Michigan — where the Supreme Court upheld asset forfeiture laws even when they result in the seizure of property belonging to innocent owners
- Kelo v. City of New London — the infamous decision where the Court upheld an eminent domain proceeding that resulted in a woman’s property being taken from her and given to a private company for private use.
- Penn Central v . New York — which rejected the idea that the Fifth Amendment’s Takings Clause also covers regulatory takings that result in near-complete destruction of property value
- U.S. v. Carolene Products — where the Supreme Court essentially said that some rights are more deserving of protection than others.
- Grutter v. Bolinger — where the Supreme Court upheld the University of Michigan Law School’s race-based admissions policy
In each case, Levy and Mellor clearly explain how the Court ignored the plain text of the Constitution, precedent, and quite often common sense, to reach it’s decision and how those decisions have increased the power of the state at the expense of individual liberty. Oe may disagree with the author’s choice of cases;it would have been interesting, for example, for them to discuss “Dirty Dozen” cases from the era prior to 1937 (and there are certainly enough of them) and how those decisions lead to the judicial ideology that created the case law they rightly decry. However, it’s fairly clear that they’ve selected a dozen pretty bad cases, and the book provides an object lesson of what happens when one of the branches of government ignores it’s Constitutional responsibilities.
In Federalist No. 78, Alexander Hamilton said about the judiciary:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [1] ; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
What the Founders didn’t count on is that the Judiciary would be complicit in the destruction of American liberty.
November 2nd, 2009 at 9:50 pm
Not a bad or surprising list, for the most part. Any list HAS to include Wickard v. Filburn.
However, and this is probably professional bias talking, I would include NLRB v. Jones & Laughlin Steel Corp., as well as West Coast Hotel v. Parrish. I agree that any such list is highly debatable.
I’m also a little surprised that Plessy v. Ferguson (even though later reversed, on dubious grounds, in Brown v. Board of Education), Dred Scott (it caused the Civil War, after all), and The Slaughterhouse Cases didn’t make the list, and even more surprised that a case like McConnell did: while an abomination, it was hardly the first case of its sort. Likewise, I’m dubious about the discussion of Roe, particularly since Griswold was the more dubious precursor.
Nevertheless, I’ll have to pick this one up. Sounds like a good read, though I don’t know how anyone schooled in the law can assess whether an author is “making those issues understandable even to someone without legal training.” Given the state of American legal education, we’ve all been too corrupted to do so.
November 2nd, 2009 at 9:58 pm
James,
The authors made clear in the book that they were only included post-New Deal cases in their list.
November 2nd, 2009 at 10:38 pm
Oh. Well that explains it then. Unfortunately, the roots go deep.
November 2nd, 2009 at 11:10 pm
Virginia needs serious campaign finance reform that will restore our representative relationship between the elected officials and the citizens. Such reforms are not limits to speech, but they do prevent the rich from drowning out the voices of the citizens in a particular district.
Everyone is having to devote increasing amounts of time to raise money, and the APPEARANCE presented to the voters is that corruption has become commonplace, while their voices have been drowned out by mega donations provided by national and multinational interests.
We want the voices of the citizens of each district to be more clearly heard:
1. Eliminate corporate contributions. Corporations are profit making entities whose by-laws mandate that they expend money only with the expectation of a return on that investment. When candidates accept corporate money, it creates the appearance of corruption.
2. Eliminate PAC contributions.
3. Restrict contributions to be only from citizens whose PRIMARY residence is within the district. Of course, for statewide elections, permit contributions from anyone whose PRIMARY residence is within Virginia.
4. Cap the amount to the federal limit for an individual contribution.
These reforms will amplify the voices of the citizens who reside in the respective districts, and restore the representative relationship between our elected officials and the citizens who reside in their areas of representation.
Campaign finance reform will enhance the ability of the individual citizen to be heard.
Just as rule changes have made certain sports more competitive, these reforms will help end the never ending spiral of campaign costs. Since everyone will have to play by the same rules, these changes will make campaigns more affordable, while helping to free more time for elected officials to spend on working with their constituents.
November 3rd, 2009 at 8:08 am
US vs Carolene Products 1937: Expanded the concept of the Commerce Clause to include any product or service the majority doesn’t like (strangely it was originally about milk); concept has polluted many, many cases since…notably recently against international matchmaking services because of the idea that “only losers date foreign women so we should do foreign women a favor by forcibly background checking these guys”.
European Connections vs Rodriguez 2006: Upholding the IMBRA (marriage broker regulation) law, African-American Clinton appointee Clarence Cooper completely reversed his TRO (restraining order on IMBRA) http://www.veteransabroad.com/TRO.pdf because someone upstairs had clearly told him that his attitude that men had a right not to be background checked before meeting women was unacceptable to his chances of being nominated to the Supreme Court. The wording of his final decision compared people meeting each other online to buying a weapon: he “wrote” that both can involve federally mandated background checks on the individuals involved.
Note that Cooper clearly shows that this concept can apply to all online dating websites:
http://www.online-dating-rights.com/index.php?ind=downloads&op=entry_view&iden=25#
The “decision’s” wording can be proven to have come from a federally funded feminist organization (unconstitutional to fund such organizations but, as in 1930s Germany, the public always agrees when it is “to protect women and girls”) because the text could be found, before the decision, word for word on one of their websites.
But what else is new? As long as federal judges depend on Congress and Presidents for their career advancement, we will have a banana republic.
It gets worse:
AODA vs Rodriguez 2006: This time a new GW Bush appointee, Thomas Rose of Ohio, decided he wanted to be liked by the Bush Administration so he decided to refuse a restraining order on IMBRA for the following reasons:
1) “There is no fundamental liberty interest in an American contacting a foreigner for an intimate relationship”
2) Americans online are products that need warning labels.
This is, sadly, not a joke. The court documents are here and those words were spoken on the Friday before Memorial Day 2006. Veterans would turn in their graves:
http://www.online-dating-rights.com/index.php?ind=downloads&op=section_view&idev=2
Rose was apparently trying to suck up to those Republicans who felt they needed legal backing to prevent Muslims from talking to people in Pakistan as any kind of right. I assume he felt he could throw men who want to meet Russian women under the bus and nobody in the press would complain.
He was correct. Dmitri Vassilaros of the Pittsburgh Tribune later admitted that his boss, Billionaire “Republican” Dick Scaife, didn’t want his story of the above decisions to be published.
Another factor in avidly declaring Americans to be in need of “warning labels” (background checks) before meeting foreigners is a “Republican” penchant for wanting to “crack down on sex tourists and sex offenders” – so IMBRA, which regulates how adults can communicate internationally, was a good way to expand on the federal Protect Act, which says that a US citizen who hits on a foreign 17 year old in another country can go to jail in the US for sexually harassing a minor (gay man now being prosecuted for making a proposal to Moldavian teens). IMBRA simply said that we don’t have any right to talk to foreigners older than 18 either.
See how laws progress from those like the Protect Act that sound OK to those that push the envelope?
In almost all tyrannies, freedom grabs almost *always* involve the “need to protect women and girls”. Yellow stars on Jews were specifically mandated so Germanic virgins would know when to run away from “perverts”.
Meanwhile, Wikipedia is controlled by those who get federal funding (and thus the financed work time) to control their interests (the funding) on Wikipedia. You won’t actually find the above actual court documents in the Wikipedia entry for IMBRA.
In fact, how often have newspapers printed actual court documents highlighting what judges actually wrote as opposed to what the newspaper publishers wanted to be known about what the judges wrote?
November 3rd, 2009 at 9:50 am
Hi J Tyler!
How did campaign finance reform reduce the cost of the Obama campaign?
And how did it keep the DC-residing ACORN mercenaries out of my Virginia neighborhood last fall?
And campaign finance reform as a cure for spending too much time raising money — who should we believe? You or Obama?
I guess you didn’t catch that the White House is saying that Obama needed to make 4 and 5 times as many campaign fundraising appearances as Bush or Clinton because of campaign financing reform.