There is a new book out, which happens to have a similar name to the book by Ian Mitroff (Dirty Rotten Strategies) called "'The Dirty Dozen' Cases the Changed Our Country", that naturally i rather disagree with.
http://www.humanevents.com/article.php?id=26314
As the above reviewer notes; "As to which constitutional decisions are “worst,” lawyers usually disagree." And for good reasons. Some believe the Courts were wrong when they extended constitutional provisions to minority, others that they were wrong when they tried to redress wrongs, and still others, simply for any decision that extends the reach of the Federal Government. This one reviewer claims his "worst 5" includes " M’Colluch in 1819", but of course the author is talking about recent cases. After the review I've just conducted of the history of the Judiciary, the problems of bureaucracy, and their genesis; to me this author is diagnosing the wrong problem. As Mitroff would say, about some of them he is right for the wrong reasons, in others his assumptions are wrong, and on the whole he is diagnosing the wrong problem.
You can listen to Bob Levy talk about his own book here: http://www.booktv.org, but his affiliations with the Ayn Randists are obvious after 5 minutes of listening to him talk. And so naturally his list of the 12 worst cases in recent history sound like a hit list of the current 5 member majority of the Supreme Court. Instead of upholding individual freedom as the Corporatists and their Ayn Rand Sympathizers maintain, other lawyers (and layfolks like myself) would maintain that those supreme court decisions they criticize (for the most part) aimed at reigning in abuses among other governing powers (specifically corporate america and its shell game front groups). At the same time, some of those decisions were like trying to kill a gnat with a baseball bat in a room full of eggs. And some of them genuinely were eggregious. What was needed was a strip of sticky paper. What is needed is justice. How do we get it?
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Now I not only see McCulloch Versus Maryland as a good thing, but in fact I can see why a proper interpretation of what Marshall is saying would behoove real conservatives because he was interpreting the meaning of the words of the constitution in an intelligent manner, consistent with our common law heritage, that could have guided later decisions better if those making those decisions would follow the same general rules. Marshall didn't establish the premise that a farmer eating his own Wheat on his own farm was engaging in interstate commerce. That "construction" was the act of a later court trying to find a way to justify rectifying a legal matter by tying it to the Commerce Clause. On the contrary, in Gibson versus Ogden he said that the "internal commerce of a state, then, may be considered as reserved for the State itself". (Source is another great book; "American Government" (page 81) by Peter Woll).
I was going to go through all twelve of this guys cases, because the authors are right on some things and wrong on others. But it is easier to comment on this review instead;
"To choose their “dirty dozen,” the authors considered “post-1933 cases that had the most destructive effect on law and public policy, either by expanding government powers beyond those that are constitutionally authorized or by imperiling individual liberties that are constitutionally protected.” (My emphasis.)"
This yardstick "imperiling individual liberties" is one I can agree on in principle. Okay, so far. Who can disagree with that premise? But is it true?
"Given the authors’ stated goal -- i.e., the selection of a dozen cases that “expanded” or “imperiled,” which by itself was a workable objective -- regrettably they’ve created a serious contradiction for themselves: On the first page of their Introduction they write: “This book is about twelve Supreme Court cases [beginning in 1934] that changed the course of American history -- away from constitutional government.” (My emphasis.)"
Well of course, the authors are in the alarmist camp and are aiming a polemic designed to incite sympathizers to arms and to inspire them to action. My only problem is that some of the things that Bob Levy and his cohorts identify as "imperiling individual liberty" I see as having been (since one of them was overturned since the book came out) standing in the way of the real peril to our individual liberty: local tyranny both literally in the form of oligarchy and less obviously in the form of corporate ownership of pretty much every facet of our lives -- including the Government.
Even within the scope of the authors premises, the equally libertarian reviewer I'm citing criticizes them:
"Cases “expanding government powers” or “imperiling individual liberties” are one thing, and not difficult to find. But cases that “changed the course of American history” are something else entirely, and not so prevalent. If the authors’ “dirty dozen” were intended to satisfy the “expanding” or “imperiling” standard, the book succeeds, albeit only in part. However, if all twelve must satisfy the “chang[ing] the course of American history” standard, only five succeed."
And of course opinions may vary about even that number.
"For example, in his foreword Professor Epstein rightly disagrees with the authors’ selection of Whitman v. American Trucking Associations, Inc., (administrative agencies, not Congress, enacting legislation) and United States v. Miller (limiting the right to bear arms)."
Now I would tend to agree about Whitman and Chevron, because the real problem with administrative agencies is not that they are engaging in regulation but how they are constituted, and part of that constitution should be Justice oversight. To me the problem is that there is not enough of the right kind of oversight. Not that Judges are enacting laws. Prior to the Constitution and prior to the New Deal, Judges regularly made law one case at a time. The notion of "activist judge" wasn't invented until Roosevelt's appointees started using the same kind of techniques to protect ordinary people that their predecessors had used to protect the wealthy and connected. Nobody complained about Activist judges when Dred Scott came down, or when the Supreme Court first ruled that Corporations deserved the 14th amendment protection, while blacks didn't. Common law gives judges the power to make law while deciding cases, and John Marshal was applying common law principles when he introduced his first decisions. The primary problem with Common law and judge made law was that it tends to be just as elitist (and in that sense corrupt) as Senates and other bodies are when in the hands of over-privileged individuals.
"He’s correct about Whitman because, as he says, it was Chevron U.S.A., Inc. v. Natural Resources Defense Council in 1984, “that inaugurated the principle of high judicial deference to administrative agencies on practically all questions of law.” Chevron would easily have satisfied the “expanding” or “imperiling” standard, and perhaps even the “changed” standard."
The irony of this is that this case came about because of over-concern about "activist courts" making law. However, when administrative agencies are permitted to place judicial roles in the same hands as executive roles, the amount of mischief is inimical to the general good and the ability of people to seek redress is degraded.
Peter Woll, in his book on "American Bureaucracy" describes how British courts sought to resist such administrative law by advancing principles that later informed the progressive movement. He quotes A.V.Dicey and "Introduction to the Study of the Law of the Constitution (1885)" and notes that there are three principles of common law:
1. "No man is punishable or can be lawfully made to suffer in body or goods [life, liberty or property] exept for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land."
This is contrasted with rule of law under tyranny where there is the granting of "wide, arbitrary, or discretionary powers of constraint". Ordinary courts means that nobody should be subject to secret tribunals, to tribunals where they have immunity, impunity, or special consideration; but in "common law courts" just like the rest of us.
This approach is predicated on the notion that:
2: "No man is above the law"
Which means that even officials, judges, Presidents; should not be immune from judicial scrutiny. Levy is right to decry this "hands off" attitude of the courts. Personally I would rather Bill Clinton had been replaced by Al Gore. Somehow the thought of both Bush and Clinton sharing the same jail cell doesn't bother me. The principle of "no man above the law" is more important than partisanship.
3; "General principles of the constitution" should reflect a connection to the traditional rights established by the weight of "judicial decisions determining the rights of private persons in particular cases brought before the courts.
Now Dicey was fighting against the dangers of administrative law. No kind of law is fool-proof, and so the weaknesses of Judge made law are that bad judges can start precedents that cause trouble for centuries. Dicey was fighting a situation in which "administrative agencies were beginning to assume judicial functions, and that because of this the rule of law was being placed in jeopardy." We are facing a similar situation. As Woll notes "while Coke...won his victory,...Dicey [faced] the more formidable obstacle of the combination of an expanding bureaucracy with judicial power."
So the authors are right on this one. However this next one:
"Professor Epstein is correct also about Miller, because the decision, strongly implying that Americans did not possess the individual right to bear arms, neither significantly “expanded” nor “imperiled” citizens’ right to own guns, which millions of Americans currently do (albeit subject to some regulations). Miller be said to have “changed the course of American history -- away from constitutional government” but only in a limited sense. (The case currently before the Court on the District of Columbia gun ban will be of far greater import, regardless of its outcome)."
And of course the recent overturning of DC's gun laws imperils law abiding citizens, but really doesn't reinforce the principle of public service (the first half of the second amendment), nor protect us from tyranny (people may be allowed to own Uzzies, but the Government keeps its rockets, helicopters, and tanks).
"Bemis v. Michigan, a 5-4 ruling allowing the state to forfeit assets used in a crime even though they belonged to an innocent owner, is hardly an earth-shaking due process decision compared to many previous ones. While, like others, it may have “expanded” or “imperiled,” Bemis is hardly is a case that “changed the course of American history” --whatever the moral implications of an innocent being wrongly punished."
What Bernis does represent is a court that favors the collective rights of corporate power, wealthy individuals, and agencies over individual property rights. The ability to seize assets, even in cases where there was no crime proven, is a pernicious abuse of power. However, it is one that could be rectified fairly easily.
"As to McConnell v. Federal Election Commission, prohibiting speech within a couple months of an election, the authors are correct that “Campaign finance laws attack the heart of our democratic political system,” and in that sense the case “expands” and “imperils.” However, McConnell involves only one category of speech -- political -- while, since 1933, the Court has sanctioned government suppression of other kinds of speech, e.g., symbolic, obscene, commercial, and more. McConnell is thus just another suppression of speech, but surely not one that has changed American history."
On the contrary the decision in 1888 that gave fourteenth amendment rights to Corporations, that changed history. It, more than anything else, defenestrated State Governments from dealing with mighty Corporate States like Penn Central; made it difficult for the Federal Government to deal with them, corrupted both the courts and the Senate, and ultimately made the New Deal and Progressive movements both necessary and difficult to get anywhere.
And of course FEC versus Clinton movie reinforced that decision and oerturned McConnell. Now corporate America has rights the rest of us don't have. McConnell, to me stood in the way of Corporate power over our liberty. This new law removes restraints on them. And it was influenced by this book.
"Although the authors are certainly correct that Kelo v. City of New London and Penn Central Transportation Co. v. New York, allowing confiscation of private property through eminent domain and regulation, for commercial as well as government purposes, were “expanded” and “imperiled” cases, Kelo was actually the product of the case to which they give dishonorable mention”: Berman v. Parker. In that “urban renewal” case, decided a half-century earlier, the constitutional term “public use” was given a broad interpretation, and the nature of real property ownership changed dramatically. As the authors note, after Berman in 1954, “courts routinely deferred to legislatures and planning commissions in eminent domain actions . . .” -- making Kelo a mere consequence of Berman. And, in that respect, so too was Penn Central."
Kelo was a corrupt decision, but at least they still haven't allowed the Courts to get away with the kinds of abuses that used to occur with eminent domain; where people would be "compensated" with nothing and forced to move away for nothing. And it represents a long train of broken treaties and shyster land laws ranging from the way we stole land from the Indians to the way the coal companies stole land from farmers in Appalachia.
"The last of the “dirty dozen,” discussed in Chapter 12, is the 2003 case of Grutter v. Bollinger, upholding racial preferences in undergraduate admissions -- a decision presaged by the Court’s 1978 decision in Regents of the University of California v. Bakke, to which the authors give “dishonorable mention. In Bakke, the Court approved the consideration of race to achieve “diversity” in undergraduate admissions. Despite the justifiable outrage that accompanied Grutter and the cogency of the four-justice dissent (especially Justice Thomas’s), the case added little if anything new to the reprehensible racial preference scheme propounded by Justice Powell in Bakke."
Funny how conservatives decry the courts redressing past abuses of privilege.
"On the other hand, in five of their “dirty dozen,” the authors are correct in their assessment of the cases’ impact. "
"Home Building & Loan Association v. Blaisdell allowed states -- in repudiation of Article I of the Constitution’s Cont[r]act Clause -- to nullify private mortgage contracts because of depression-induced inability of mortgagees to make their payments."
http://www.oyez.org/cases/1901-1939/1933/1933_370
I had to look this one up. But I found it, it refers to one of the few provisions in the pre-14th amendment constitution that binds States:
No State shall ....pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."
Oh, the claim is that Minnesota was able to get away with invalidating contracts in 1934. This is a big deal for monied people and has been since famous legends like "The Devil and Daniel Webster" where the Devil is portrayed as being bound by US Contract law. Of course no right is absolute, and no prohibition is absolute. Illegal contracts have always been invalid (by common law).
Well it turns out that the real issue was that the State of Minnesota was allowed to "extend[] the time period in which borrowers could pay back their debts on property to lenders." A big deal to monied people, who would prefer to see their loans go down in flames rather than be repaid, but as the Supreme Court decided at the time "had never been absolute or meant to be interpreted literally." I'm a little uncomfortable with that reasoning, and I may devote a future post to this subject.
"In Helvering v. Davis, the Court upheld the Social Security system in the name of spending for the “general welfare.” As Epstein says, the case “transformed the Constitution’s General Welfare Clause from a limitation of government power to a source of added power.” We see the consequences at every session of Congress, and every term of the Supreme Court. "
To each his own list. Personally I like that decision and think it was perfectly constitution. The author might as well be arguing with John Calhoun and on the side of South Carolina nullifiers for all this argument makes sense. [Calhoun was one of the first to use this formula, and only repudiated it when he saw that the US was trending against slavery.] Calhoun said that "any project genuinely in the national interest" is constitutional. I agree with him on this.
"In United States v. Carolene Products, involving federal prohibition of interstate shipment of a certain type of milk, the Court severely limited review of a federal statute by asking only “whether any state of facts either known or which could reasonably be assumed affords support” for the legislation. Carolene Products thus effectively took government depredation of economic liberties out of the realm of judicial review. To say that the decision “changed the course of American history” is an understatement."
The issue here is one I'm planning to talk about at length in a future post. The real problem is that the courts (as with other areas where they defer to agencies) acknowledge they lack the objectivity, subject matter expertize or wisdom to over-rule agencies. The problem here is the constitution of the courts, and that is why it hasn't been solved.
"Wickard v. Filburn, upholding federal quotas for home-grown wheat to be consumed locally, engorged the Commerce Clause, profoundly changing the delicate equilibrium between the federal government and the states. "
I note that even John Marshal would have agreed on this one. He excepted those "commerces" completely within one state. Cannibus smokers should take note.
"Korematsu v. United States, upheld the wholesale WW II removal of Japanese-American citizens from their homes. The decision unarguably expanded government power and imperiled individual rights -- indeed, it trampled on them -- and changed, hopefully for the better, the future treatment of American citizens who are prima facie innocent of any wrongdoing."
I think everyone agrees. Yet everytime we have an emergency or a war the same kind of deeds get repeated and the officials get off with impunity. This is why we need judicial reform. We need to build in "judiciary function" into executive organizations across the board. That doesn't always mean "judge made law" as in England. Sometimes it means "Juries" constituted to combine POV and expertize in a judicious, fair, and balanced manner -- and overseen by process judges who can over-rule corruption, partisanship and partiality.
"In trying to select twelve post-1933 “dirty” cases, Levy and Mellor gave themselves a difficult assignment. Although by the standards they set for themselves they have not completely achieved their goal, still, they have brought to the general public a challenging indictment of the Supreme Court that is at once accessible and provocative."
Some of the choices are obvious to anybody. And some are only obvious to corporatists and elitists.
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