George C. Leef
Campaign For Liberty
Friday, January 15th, 2010

The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Robert A. Levy and William Mellor (Sentinel, 2008); 299 pages.

Americans like lists. Most often, we get “Top Ten” lists, but this book is a top dozen list, a list of the most damaging Supreme Court decisions during and since the New Deal era. The authors, two lawyers with strong libertarian philosophies, set out to show which decisions have had the most detrimental impact by expanding the realm of government coercion and depriving people of their liberty. This, they correctly observe, is a target-rich environment. The Supreme Court has been blundering along a statist/collectivist path for many decades and each passing term brings new decisions that make constitutionalists hang their heads in despair. “Seldom,” Levy and Mellor write, “has the ratchet of the Court’s decisions turned toward greater individual liberty. To the contrary, the Court has further and further restricted the freedoms that Americans should enjoy as a birthright.”

Many readers of Freedom Daily will have their own ideas about the worst cases and are eager to see if any of them make the authors’ list. So let’s get right to the Dirty Dozen.
Helvering v. Davis (1937)

This was the case that gave the Court’s stamp of approval on Social Security and it turned on the meaning of the General Welfare Clause in Article I, Section 8, which specifies that Congress has certain powers including powers “to provide for the common defense and general welfare.” Did those words give Congress free rein to enact any law that might be said to advance “the general welfare”? Or were the words meant as a further limitation on the specific powers previously granted, in effect saying, “Congress may do these things, but only so long as they are for the general well-being of the people and not just to make a few better off at the expense of the rest”?

Alexander Hamilton had favored the former, expansive view, but James Madison argued to the contrary, observing that it would make no sense to list particular powers and then add a clause that swallows all of them up in a vague generality.

Madison’s view was the accepted one until Helvering. In 1936, Congress passed the Social Security Act and Roosevelt signed it into law. It was immediately challenged on constitutional grounds — that Article I, Section 8, does not give Congress any power to set up a mandatory retirement system. The Court’s precedents would have dictated an easy win for Davis (who was suing the IRS Commissioner to avoid being forced to collect and remit the Social Security “contributions”), but instead it tossed out the precedents. Chief Justice Harlan Fiske Stone, writing for a 7-2 majority, held that the General Welfare Clause was a separate grant of power to Congress and if it thought this new “Social Security” scheme was a good idea, the Court would not stand in the way.

The implications of this case have been staggering. It opened the floodgates to unrestrained federal spending, since almost anything can be claimed to advance “the general welfare.” So long as Congress says that every new law is meant to have a good purpose, that was sufficient for the Court.
Wickard v. Filburn (1942)

This despicable decision involved the efforts of a federal official, Secretary of Agriculture Claude Wickard, to fine an Ohio farmer, Roscoe Filburn, for having grown too much wheat.

In the America of 1787, what a farmer grew on his land was no business of the federal government’s, but in the America of 1942 (and ever since), what someone grows on his land is very much the business of the federal government. If you disobey its orders, you’ll be punished.

In 1941, Filburn had grown more wheat than Department of Agriculture regulations said he could. Those regulations had been promulgated in order to depress the supply of wheat and thereby raise prices. All of Filburn’s wheat was consumed on his own farm, but that didn’t matter to the federal dictators. He had to be fined for his arrogant disregard of the law!

Ah, but where in the Constitution was there anything saying that the government could tell farmers how much they could grow? The government’s argument was that the program to raise the price of wheat was part of a regulation of interstate commerce — language that is in the Constitution. If Filburn had not grown those illegal bushels of wheat, he might have purchased that same amount in the national market. By not buying in the national market, Filburn was helping to undermine the federal government’s regulatory scheme. Therefore, in telling farmers how much they could grow, the government was merely regulating interstate commerce.

The Court easily accepted that preposterous argument. By 1942, it was loaded with collectivists who could see no reason that individual liberty should get in the way of bold programs to bring the chaos of the free market under the benevolent guidance of federal bureaucrats.

Following Wickard, there was nothing to stop federal economic meddling, since nearly everything can be said to somehow “affect” interstate commerce. Distressingly, Wickard was recently reaffirmed in the Court’s decision in Gonzalez v. Raich, where the issue was whether Congress could override state laws allowing certain people to use marijuana for medical purposes. Levy and Mellor devastate the feeble logic of that decision.
Home Building and Loan v. Blaisdell (1934)

Should people be free to contract as they see fit? A contract, of course, is a mutually enforceable agreement and if politicians can intervene to stop contracts from being enforced because they feel sorry for one of the parties, then contractual freedom — not to mention the concept of equality under the law — has been gravely undermined.

The Constitution provides that state governments may not “impair the obligation of contracts,” but in this case the Supreme Court decided that state governments could do precisely that if they felt that they needed to. Minnesota’s legislature had passed a law preventing mortgage holders from foreclosing when borrowers failed to make their payments, thus rewriting the contracts for the benefit of the borrowers. When the Blaisdells did not pay, Home Building and Loan sued, contending that the law protecting borrowers was unconstitutional.

Clearly, it was, but the justices tortured both logic and the language of the Constitution to arrive at a contrary (but politically expedient) result. Emergencies do not create new governmental powers, wrote Chief Justice Charles Evans Hughes, but he then proceeded to conclude that, in the authors’ words, “financial hardships associated with the Great Depression allowed Minnesota to do exactly what the Constitution forbids.”

Ever since Blaisdell, freedom of contract has been dying the death of a thousand cuts.
Whitman v. American Trucking Association (2001)

Bad as it is for elected politicians to pass unjust, authoritarian laws, at least they might be voted out of office if enough people get upset. When the politicians turn the lawmaking over to unelected bureaucrats, things are worse. Bureaucrats can’t be voted out. The distressing fact is that lawmaking by bureaucrats dwarfs the lawmaking by elected “representatives.”

The Constitution does not say that Congress is allowed to turn its lawmaking authority over to bureaucrats, but it has been doing so for many years. Naturally, the Supreme Court has been willing to acquiesce in that, believing that Congress needs to rely on administrative experts to make lots of regulations to control our lives. Whitman was an opportunity for the Court to apply the brakes on bureaucratic lawmaking, but it went the other way, tearing up what remained of the nondelegation principle. The justices ruled that delegation of lawmaking authority is permissible even if the standards set forth for the agency to follow are extremely vague.

After Whitman, Mellor and Levy say, “the best we can wish for is that administrative agencies will use their unconstitutional powers ‘reasonably.’ That unlikely outcome would be the triumph of hope over experience.”
McConnell v. Federal Election Commission (2003)

McConnell was the decision that proclaimed constitutional a shocking assault on the First Amendment, namely the Bipartisan Campaign Reform Act (BCRA, aka the McCain-Feingold Act). The First Amendment clearly states that Congress shall make no law abridging the freedom of speech or of the press. The BCRA places severe limits on those freedoms in political campaigns, yet when the law was challenged the Supreme Court held that it is so important to prevent “the appearance of corruption” in elections that the First Amendment would just have to be set aside. Of the decision, the authors say, “In effect, the Court rewrote the first Amendment so that it mandated fair speech, as perceived by nine justices, instead of ensuring free speech, as intended by the framers.”

This astounding decision will do nothing to stop political corruption, and may actually increase it because, as Levy and Mellor point out, one of the law’s consequences is to make it harder to successfully challenge incumbents. It is all too typical of the Court to allow wishful thinking to trump the unambiguous words of the Constitution.
United States v. Miller (1939)

This is the case that led to the idea that the Second Amendment does not protect the individual citizen’s right to keep and bear arms, but says only that governments are entitled to arm their militias. That bizarre decision led to many draconian anti-gun laws around the country and lower court decisions upholding them.

Fortunately, the recent decision in District of Columbia v. Heller, in which the Court rejected the “collective right” theory of the Second Amendment, takes Miller off the list of the worst cases. Even though the Court did not expressly overrule Miller, Heller rebukes the strange interpretation of the Second Amendment in that case as pertaining only to “militias.”
Korematsu v. United States (1944)

Political “liberals” are forever prattling away that “we” are guilty of sins against various groups, but you don’t often hear them talking about one of the ugliest occurrences in American history — the internment of Japanese-Americans during World War II. It was ordered by the sainted Franklin D. Roosevelt to appease public opinion that had been inflamed by race-baiters on the West Coast. The rights of 120,000 people, most of whom were American citizens, were flagrantly violated and yet when the validity of Roosevelt’s executive order was challenged, the Supreme Court meekly upheld it on the grounds that during emergencies, political authorities must have a free hand to protect the nation. Therefore, due process of law can be ignored.

Decades later (in 1983), a congressional commission reported that the internment was not justified by any military necessity, but rather was the product of “race prejudice, war hysteria and a failure of political leadership.” Nevertheless, Korematsu remains good law, a Supreme Court precedent for other “emergency” measures that deprive people of their rights without due process of law.

That’s why Korematsu is still worrisome. As Mellor and Levy write, “Today, suspensions of constitutional protections are defended on the same grounds that the Japanese internment was justified: national security.” The door is open to heavy-handed abuse of individuals during “emergencies” (which may well become the rule rather than the exception) if officials merely suspect them to be somehow associated with terrorism.

Bennis v. Michigan (1996) This case gave Supreme Court approval to the odious practice of civil-asset forfeiture. Under civil-asset forfeiture laws, government officials are entitled to seize a person’s assets because he was either somehow involved in criminal behavior, or his property was. The theory that “guilty property” can be taken by government goes back centuries, but in recent years it has been expanded to the point where officials look to asset seizures as a means of padding their budgets. It encourages predatory behavior by law-enforcement agents. In Bennis, the Supreme Court could have blown the whistle but did not.

The facts: John and Tina Bennis were married and jointly owned a car. In October 1998 Detroit police officers saw a woman they believed to be a prostitute “flagging cars.” One vehicle stopped, the driver allowing her to get in. The police followed the car at a distance. When it stopped, they approached and found the driver and the woman engaged in sexual activity. John Bennis, the driver, was arrested for indecency and the police confiscated the car under Michigan law.

But what about Tina Bennis? The car was half hers and she had committed no violation of law. Could the government seize property owned by an innocent person? The Court said yes, relying solely on precedent. Chief Justice William Rehnquist wrote, “The cases authorizing actions of the kind at issue are too firmly fixed in the punitive and remedial jurisprudence of the country now to be displaced.” Four justices strongly dissented, but the damage was done.

Bennis has very disturbing implications, among them that people who have done nothing illegal — not having committed so much as a victimless crime — can lose their property because of the illegal conduct of someone else. Also, the case gives the green light to rogue government officials to target nondangerous activities such as prostitution, where the chance to hit the jackpot by seizing high-value property is good.


United States v. Carolene Products (1938)

For 70 years the Supreme Court has adhered to a doctrine that places some rights on a pedestal and others on the floor — where government officials may trample upon them as much as they please. In general, “economic” rights are in the latter class. If politicians want to create monopolies, ban the sale of products, impose absurd licensing requirements, or do other things that obstruct commerce, the Court has said, “That’s no concern of ours — let them do it.”

Carolene Products was a New Deal case that put on clear display the Supreme Court’s indifference to economic liberty. Congress had passed a statute called the Filled Milk Act, which prohibited interstate shipment of “filled milk” — an evaporated-milk product made from skim milk and coconut oil. It had the same taste, odor, color, and cooking properties as regular evaporated milk but cost less. Responding to complaints from the dairy industry, Congress wiped out interstate competition, declaring that filled milk was injurious to the public health. That was just political window-dressing for the blatant act of destroying competition from a product that consumers had safely used for many years. It was nothing but special-interest legislation.

Counsel for Carolene Products showed that there was absolutely no evidence of any harm to consumers from filled milk. Too bad, but the Supreme Court was not interested in such facts. Chief Justice Harland Stone wrote that while some cases call for “strict scrutiny” of legislation, others call upon the Court only to ascertain whether there might be a “rational basis” for it. The mere freedom to sell a product was not important enough to demand “strict scrutiny.” This meant that Congress and state legislatures would not be impeded in passing even the most egregiously anti-competitive laws. The result of the Court’s “rational basis” jurisprudence — that is, its declared indifference to economic meddling — has been, Mellor and Levy write, “an avalanche of special interest legislation.”


Kelo v. City of New London (2005)

The Fifth Amendment states that private property may be taken by government only for public use, and then only if just compensation is paid to the owner. That language, allowing the camel of statist greed to get its nose under the private-property tent, was never very clear, and over the years, what was intended as a bulwark against the abuse of eminent domain has eroded to almost nothing. We have the Supreme Court to thank for that.

In Kelo, the Court might have repaired the defenses but instead weakened them. The City of New London, Connecticut, wanted to seize a lot of riverfront property so that a private development with offices, a hotel, shops, and upscale condos could go in. It was a classic case of government officials drooling for increased tax revenue and taking land away from homeowners who paid relatively little in taxes so that businesses that would pay much more in taxes could have it instead. Suzette Kelo complained that the taking was unconstitutional because it was not for a public use. Unfortunately, a majority of the justices disagreed, holding that the taking was permissible because it was supposed to have a public purpose.

Justice John Paul Stevens declared that “economic development” was a key government function and thus if some people had to give up their property for the supposed “greater good” of the community, the Fifth Amendment did not stand in the way. New London therefore could take Kelo’s home for its “revitalization” project (which, incidentally, is languishing). Even Justice Sandra Day O’Connor, usually one to defer to the supposed expertise of government planners, couldn’t go along, writing, “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with a factory.”

Kelo means that so long as they follow certain formalities, politicians can take any property they want. The Founders certainly did not intend government to have such power, but the Court is more concerned with the illusory benefits of government coercion than with the rights of individual property owners.


Penn Central v. New York (1978)

Penn Central is another property-rights case, but involving a “regulatory taking” rather than eminent domain. Governments can and often do regulate a property in such a way as to greatly lower its value — sometimes to virtually nothing. When it does so, must it compensate the owner? How far can government go before it has gone “too far” and must pay?

Following a merger in 1968 with the New York Central Railroad, Penn Central became the owner of Grand Central Terminal in New York City. The company wanted to construct an office building over the terminal. Another 50-story structure in New York: What could be the problem with that? New York City’s Landmarks Preservation Law, that’s what. A commission had been given the task of identifying buildings that were “landmarks,” and once a building was so designated, the owners could not alter it in any way without the approval of the commission. Penn Central’s plans for the new structure were submitted to the commission, but it rejected them, costing the company around $150 million in annual revenues. It sued.

When the case reached the Supreme Court, the justices had to decide whether New York had to compensate the company if it enforced its “landmark” regulation. Justice William Brennan’s majority opinion ruled in favor of the city. Mellor and Levy comment,

Brennan’s characterization makes compensation depend on the elusive notion of what is just and fair. But the language of the Fifth Amendment presupposes that compensation is required unless the government can demonstrate otherwise.
Worse still, Brennan’s opinion pivoted on the idea that in cases of this sort, the focus should be on the value that still remains after the regulation rather than on the value that has been lost.

As a result of Penn Central, governments around the nation have been given almost unfettered discretion to regulate away the value of private property. One favored technique is to impose moratoria on permission to develop land where one “temporary” restriction follows another and the owner never gets to build.


Grutter v. Bollinger (2003)

Should governmental institutions be allowed to establish classes of citizens and treat some differently than others? For instance, under the “Jim Crow” laws, governments in the South used to require that whites and blacks be treated differently in many respects. Those laws were declared invalid under the Fourteenth Amendment’s Equal Protection Clause years ago, but what if governments choose to adopt “affirmative action” programs that set different admission standards for applicants to state universities depending on their race? Is it acceptable to replace the “bad” discrimination of Jim Crow with the “good” discrimination of programs that aim to increase “diversity”?

That was the issue in two cases involving the University of Michigan. Gratz v. Bollinger involved the admissions standards for undergraduates and Grutter v. Bollinger involved the admission standards used by the university’s law school. Both gave preferences based on the race of the applicant (for blacks, Hispanics, and American Indians), but the undergraduate system was very mechanical, automatically assigning a certain number of points simply on the basis of ethnicity. The law school’s system, however, was designed to look more “holistic” — that is, its preferences were adroitly masked by professed interest in vague qualities such as “leadership.”

The Supreme Court ruled that the undergraduate admission policy was unconstitutional, since it focused too much on race, while the law school’s policy was permissible. The Court uncritically accepted the law school’s assertion that it needed a “diverse” student body in order to reap the alleged educational benefits of having differing views expressed in class. Whereas the Court had traditionally required “strict scrutiny” of any law that classified people by race, in Grutter it didn’t bother with any scrutiny at all, merely taking the university’s word that racial preferences to achieve “diversity” were good.

This decision has the potential for weakening constitutional rights in an array of settings. For example, freedom of speech may be undermined. What if, the authors write, “a university determines that some purported educational benefit might be derived from its suppression?” The Court has already undermined the First Amendment with the notion that the “compelling governmental interest” in “fair” elections trumps free speech and now we have the “compelling governmental interest” in diversity on the loose, threatening other rights.

There you have them — the dirty dozen: Twelve cases (now only eleven, but there are many contenders for inclusion; my own favorite is Jones & Laughlin Steel v. NLRB, the 1937 case that okayed the horribly authoritarian National Labor Relations Act) that have done tremendous damage to our freedom by expanding the power of government.

At the next confirmation hearing for a Supreme Court justice, I hope to see senators thumbing through The Dirty Dozen hunting for tough questions to ask the nominee. There is an abundance of material in it to help sort the libertarian, pro-individual-rights wheat from the statist, pro-government chaff. And if you are one who wants to understand how so much of our liberty has been whittled away, this book goes a long way toward answering that question.