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The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom

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When reviewing Epstein's "How Progressives Rewrote the Constitution" I griped that he failed to use the "treasure trove" of case law available to support his argument. Well Levy and Mellor have found it and put it all on display! I was immediately intrigued when I saw the title. What twelve cases would they pick? The title, however, is a tad misleading. I was pleasantly surprised to discover that this book is much more than just twelve bad cases. Sure, you get twelve cases and the facts and issues involved but there's a lot more.

Liberties aren't destroyed overnight. Levy and Mellor recognize this by breaking the book up into chapters focusing on specific freedoms or clauses in the constitution rather than solely one case. They masterfully focus on one case in each area while also recognizing (through "dishonorable mentions") the precedent that lead to each of the Dirty Dozen. They also detail the repercussions and cases that followed. The effect is that they manage to take a premise, twelve distinct and often unrelated cases, and construct a comprehensive argument for the Court's responsibility in the expansion of our government and erosion of our liberties.

This book is an easy read for lawyers who are likely already aware of many of the cases. One of the many successes of this book, however, is its clear enunciation of the issues for those without a legal background. The authors spare no one, regardless of political affiliation, in their analysis of the cases. This is a perfect explanation of the damage the Supreme Court has done to our constitutional form of government in the last century.

"Regrettably, the [Supreme] court has too often taken the plain wording of the Constitution and interpreted it to mean exactly the opposite of what the Founding Fathers intended. By that process the Court profoundly altered the American legal, political, and economic landscape."

So begins Richard Epstein's forward to this truly remarkable book.

The authors, Robert Levy, of the Cato Institute, and William Mellor, of the Institute of Justice, have chosen twelve Supreme Court cases they believe "changed the course of American history".

The book is not written solely for lawyers. In fact, it is written for the citizen concerned with the expansion of government at the expense of individual freedom.

The tragedy of this book is that it will be read by so few people when it should be read by every citizen, regardless of political persuasion, who is concerned the fate of the United States.

These twelve cases are considered by the authors to be the worst decisions of the Supreme Court of the modern era. In most cases, they also list a runner-up. Events move quickly, so it is quite likely that the authors would add Boumedienne v. Bush, the incredible decision that grants a variety of rights to terrorists. Personally I think that Boumedienne will vie with Dredd Scott as being the most lunkheaded decision ever made by the Court. U.S. v. Miller, 1939 case about the Second Amendment, has been resolved by the very recent decision in District of Columbia v. Heller. (One can see how endangered the Constitution is by the 5-4 vote of the Court in Heller.)

The authors (unsurprisingly) relate each of the cases to a specific topic. The book consists of two parts, the first on how the Court has allowed government to expand far beyond the intentions of the Founding Fathers and the second on how the Court's decisions have eroded freedom.

The topics and "dirty dozen" cases are:

Promoting the general welfare (Helvering v Davis)

Regulating Interstate Commerce (Wickard v. Filburn)

Rescinding Private Contracts (Home Building & Loan v. Blaisdell)

Lawmaking by Administrative Agencies (Whitman v. American Trucking)

Campaign Finance Reform and Free Speech (McConnel v. FEC)

Gun Owner's Rights (United States v. Miller)

Civil Liberties Versus National Security (Korematsu v. U.S.)

Asset Forfeiture Without Due Process (Bennis v. Michigan)

Eminent Domain for Private Use (Kelo v. City of New London)

Taking Property by Regulation (Penn Central v . New York)

Earning an Honest Living (U.S. v. Carolene Products)

Equal Protection and Racial Preferences (Grutter v. Bolinger)

As you can see, critical liberties we take for granted are covered, such as what most people consider their "right" to earn an honest living. In fact, as the authors point out, more than 20% of jobs are subject to regulation or licensing requirements - and no matter how stupid or anti-competitive the restrictions, the Court has given the states free reign to restrict your right to earn a living. This chapter is frightening - but so are all the other chapters. Once you see how the Court has truly altered the intent of the Constitution in the past seven decades, you will worry about tomorrow and what could happen if more left-wingers are appointed to the Court.

If you are concerned for the future of the United States and its Constitution, read this book. I suspect that after reading it, you - like me - will be suggesting to everyone you know that they read it too.

Jerry

The title is misleading. It's not about 12 cases, it's about 12 topics of constitutional abuse, each topic being carefully crafted to teach an abused section of the constitution, along with how that section of the constitution has been abused, complete with the landmark cases: what they were, how they were decided, and how the Supreme Court err'ed on each.

As such it's a wonderfully informative book teaching a broad scope of Supreme Court sanctioned constitutional abuse. I found it well written, immensely entertaining, and comprehensive in both its structure and coverage. I couldn't put the book down til reaching the end.

I believe you and every American interested in our freedoms and the Supreme Court should read this book. The authors, Robert Levy and William Mellor, pick 12 Supreme Court cases they believe were poorly decided and had detrimental consequences to our society. Each of these cases is given its own chapter and often includes another case as a "dishonorable mention" that they may also reference.

Now, we are far too deferential to the Supreme Court and even the Federal Courts. We allow them to "correct society" through rulings that are really super-legislation. This is not in the Constitution and is bad for our society. It allows the legislative branch to avoid its responsibilities, and plants undemocratic sentiments in the hearts and minds of the citizenry. But this is my point of view.

Richard Epstein gives a very nice introduction and goes over his views on the cases selected. While he mostly agrees with the authors, he offers up some disagreements and explains why. This helps the reader start his or her critical thinking as they work through the book. Yes, it is written for the general public, but it is reading you will want to read and argue with in your own mind to come to your own conclusions.

The book is in two parts. The first talks about cases that have led to the expansion of government. Chapter 1 uses Helvering v Davis (1937) and U.S. v Butler (1936) to discuss the misuse of the general welfare clause. Chapter 2 uses Wickard v. Filburn (1942) and Gonzales v. Raich (2005) to demonstrate the abuse of the clause about regulating interstate commerce. Chapter 3 looks at rescinding private contracts with the 1934 case Home Building & Loan Association v. Blaisdell and the 1935 case Gold Clause Cases. Chapter 4 is an important look at lawmaking by administrative agencies through the 2001 case Whiteman v. American Trucking Association, Inc.

Part two is about eroding our freedoms. Chapter 5 examines the infamous efforts at campaign finance reform and free speech. McConnell v. Federal Election Commission 2005 and Buckley v. Valeo in 1976 are explained clearly. Gun owner rights are discussed in chapter 6 using the 1939 case U.S. v. Miller. Of course we are about to get some kind of ruling from our current Supreme Court about the second amendment. Are they going to affirm our rights, deny them or punt? We don't know yet. Chapter 7 is an important look at our civil liberties versus national security using the case Korematsu v. U.S. from 1944.

Chapter 8 talks about asset forfeiture without due process using Bennis v. Michigan from 1996. Closely related is eminent domain for private use discussed in chapter 9. The authors use the rotten decision Kelo v. City of New London from 2005 and Berman v. Parker from 1954. Taking property by regulation (a real problem nowadays) uses the cases Penn Central Transportation Co. v. New York from 1978 and the Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency from 2002 in Chapter 10.

Chapter 11 examines earning an honest living using U.S. v. Carolene Products from 1938 and Nebbia v. New York in 1934. Chapter 12 looks at equal protection and racial preferences using the famous Grutter v. Bollinger case from 2003 and the Regents of the U. of California v. Bakke from 1978. The afterword on "Judicial Activism and Tomorrow's Supreme Court" is very much worth reading.

They offer two postscripts. The first is on Roe V. Wade from 1973 and Bush v. Gore in 2000. They also provide a copy of the Constitution for easy reference. There is also a table of the cases referenced, notes, and a helpful index.

I enjoyed this book and recommend that you read it and wrestle with what the authors say about our government, our Constitution, and our manner of living. This is important and serious stuff that each of us needs to think about and act on.

For their next book, I hope they take on cases where the results were popular, but were still wrongly decided because the Supreme Court should have referred it back to the legislature for resolution.

Reviewed by Craig Matteson, Ann Arbor, MI

You might also want to look at:

The People Themselves: Popular Constitutionalism and Judicial Review

and

The Heritage Guide to the Constitution

This book is a good complement to Randy Barnett's _Restoring the Lost Constitution_. _The Dirty Dozen_ looks at twelve bad Supreme Court decisions that have effectively erased some of the explicit constitutional limits on the federal government and reduced individual freedom. The preface by Richard Epstein expresses a few minor disagreements about some of the cases chosen, and the end of the book explains why Roe v. Wade and Bush v. Gore didn't make the cut. Those that did include Korematsu v. United States (1944), which said that the U.S. program of internment for Japanese Americans was constitutional, Kelo v. City of New London (2005), which said that governments can seize private property in order to give it to other private hands, Home Building & Loan Association v. Blaisdell (1934), which said that the government can unilaterally void parts of private contracts despite Article I Section 10's explicit language to the contrary, and Bennis v. Michigan (1996), which said that government can use civil forfeiture to take property without compensation that is involved in a crime even if the owner of the property has no involvement in that crime.

If you think that the Constitution will always be there to protect you, think again.

This book illustrates what can happen when supreme court justices get it wrong: the laws that protect the people from their government lose their meaning and we're left that much more defenseless. The Dirty Dozen is one of those books that should be on everyone's summer reading list.

But the truly magnificent part about this particular work is that its veracity is NOT up for grabs- whereas many books offering one or another particular version of history will be touted as both fact and farce (depending on who you talk to), this one's got all the bases covered.

Even the most hardened liberals will concede that the outcomes of the dirty dozen cases are alarming signs that the power of government, when left unchecked, threatens us all.

I shall limit my comments to two cases included within the book. Helvering v Davis, and Kelo v New London.

The dilemma presented to the Court in the Helvering Case is the very essence of what Hamilton referred to in Federalist 78 where ' legislative invasions of it ( Constitutional Integrity ) had been instigated by the major voice of the community'. The story of the political pressures upon the Court at this time are well documented, facing either agreement to New deal policies or Court Packing the Cardozo decision gained a majority, The heart of the case came from it's predecessor Butler which admitted a view of the 'general welfare' phrase unknown to the Ratifiers of the Constitution, who at the cautions of Brutus, an anti-federalist pamphleteer emphasized that the use of the term was to natural and easy not to allow a broad construction of Constitutional authority.

The ratifying conventions accepted Publius's assertion that the specified powers defined the term 'general welfare', not vice versa (see Federalist 41 of Madison as well for the specific response). A thorough examination of the extant documents from the ratifying conventions show no mention of concern regarding the phrase, and viewed it as Madison offered, a general caption copied from the Articles of Confederation. It is recognized that in both the Helvering case and the Butler case an effort is made to find a historical record of the view of the 'general welfare', but it is limited to considering the offerings of Hamilton, with credit to Justice Story's writings, and the opposing views of Madison. This is of course as accurate as it is compartmentalized, for it obviates the larger question of what did the "People" who ratified the Constitution import on the phrase? Even more ironic is that, the very question is included in the Butler case,

The question in such cases is, not what powers the Federal Government ought to have, but what powers have, in fact, been given it by the people. P. 297 U. S. 63. Devoid of an historical investigation of what the Conventions viewed the phrase to mean, the pitting of Hamilton against is interesting but not relative to the question at hand. The real question is not what were the opinions of Madison, or Hamilton and Story, but whether either of these contrasting opinions reflect the 'consent of the governed'. The radical change in the use of the term, the "general welfare' is the poor foundation under both Helvering and Butler.

The Kelo case is another study of changing the use of a term, as was done in the Helvering case. As the Helvering case had roots in Butler it can also be stated Kelo had roots in Hawaii v Midkiff. The term public use was distinguished as having a specific meaning, and at the beginning of the synopsis of the Hawaii case it assumed that public use and public purpose are from then on to be coterminous. Noticeably Justice O'Connor wrote the majority opinion in the Hawaii case, yet was compelled to author a dissent in the Kelo case. Without going into the minutia of the writings of O'Connor in these two decisions, a quick read of Federalist 78 shows a prediction that the munificence of the Hawaii case can backfire, as Hamilton cautioned 'as no man can be sure that he may not tomorrow the victim of a spirit of injustice, by which he may be a gainer today."

In a recent symposium Assocate Justices Scalia, and Breyer debated the use of history as vital to informing the court. Justice Breyer was of the mind he was a lawyer, not a historian. For the Court to make more reliable decisions, whether in the 1930s or in the 21st Century, the use of the historical record would seem of paramount interest to the Court. If not there exists the strong probablity that we may never be able to agree on an exegesis of the Constitution, if we keep permitting unconstitutional precedents to be added to Constitutional Law. Devoid of a complete use of the historical record, the easy and natural use of terms like 'general welfare' are subject to misinterpretation, turning Brutus's warnings into his nightmare realized.

This is a great highly readable book (I read it on an airplane). Stepping back from the details one realizes that the founders of the U.S. envisioned something like the modern European Union: a unified currency but most laws that touched one's life would be made locally. A citizen would have one voice among perhaps 5 or 10 million, as indeed a citizen of Sweden does today.

Starting in the 1930s, however, the U.S. has been trending toward the highly centralized government of the states within the European Union, e.g., France or Sweden. Laws that touch a citizen of California's daily life are made 3000 miles away and the citizen has one voice among 310 million if he or she wishes to change the law.

If we want to run the U.S. like this in the long run, we should probably scrap the Constitution and make a new one that explicitly limits the powers of the states and gives most power to a central federal government. Then we could affirmative decide what we wanted the federal government to do, instead of having everything squeezed in via the interstate commerce clause. We might also rethink our system of divided responsibility and finger pointing between the president and Congress, moving toward the parliamentary system that prevails in most of the world's democracies.

If we want to run the U.S. in some manner that at least vaguely resembles the constitution, we should stop asking the federal government to run our lives, e.g., spending more than half of the health care dollars.

How did the US political machine grow to such proportions?

Why are their regulations in nearly every aspect of American life?

How did the true intentions and selective wording of the constitution become so distorted?

How did this all happen, and why was it done?

If you are looking for any of these answers you will find them in "The Dirty Dozen".

This was an educational enlightenment on the role the Supreme Court has played on shaping modern day politics over the past eight decades. Worded for those who work outside the legal field, the facts are provided and explained in an excellent effort to narratively show the progression of the political floodgates being opened.

I thoroughly enjoyed this book. The authors may push their agenda past their arguments in a few spots, but on the whole this is a great read! Should be required reading for our representatives.