United Liberty

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, that is far from the truth. In reality, and especially in the 3/4 of a century since the New Deal, the Supreme Court has essentially stood by while the Federal Government, and the states, whittle away at long cherished American liberties.

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:

1. 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
2. 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
3. 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
4. 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
5. McConnell v. FEC — where the Court upheld the McCain-Feingold Act’s restrictions on political speech
6. 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
7. 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
8. Bennis v. Michigan — where the Supreme Court upheld asset forfeiture laws even when they result in the seizure of property belonging to innocent owners
9. 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.
10. 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
11. U.S. v. Carolene Products — where the Supreme Court essentially said that some rights are more deserving of protection than others.
12. 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.