- Paperback: 320 pages
- Publisher: Cato Institute; Reprint edition (January 16, 2010)
- Language: English
- ISBN-10: 1935308270
- ISBN-13: 978-1935308270
- Product Dimensions: 6.1 x 0.9 x 9.2 inches
- Shipping Weight: 1.4 pounds (View shipping rates and policies)
- Average Customer Review: 4.4 out of 5 stars See all reviews (45 customer reviews)
- Amazon Best Sellers Rank: #483,683 in Books (See Top 100 in Books)
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The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, With a New Preface Reprint Edition
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From Publishers Weekly
Cato Institute senior fellow Levy and lawyer Mellor, in this excellent examination of twelve far-reaching Supreme Court cases and their consequences, force readers to question the direction in which the judiciary has led our country over the past century-and possibly their own attitudes toward the federal government. The authors deftly navigate the complicated proceedings without slipping into lawyer-speak, while unapologetically leaning on their libertarian sentiments to color their commentary and analysis. Though the writers defend well their claim that the dozen cases under discussion-with a number of "dishonorable mentions" and an appendix each for Roe v. Wade and Bush v. Gore-have expanded the federal government and eroded civil liberties, one can't help but feel a creeping sense of arrogance when Levy and Mellor assert repeatedly that they know how the Constitution's authors would view the document were they alive today. Still, the authors' canny investigation into the Supreme Court should call into doubt some of the staid political viewpoints readers may have taken too long for granted.
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to an out of print or unavailable edition of this title.
Many of the most harmful decisions of the U.S. Supreme Court have been subject to sustained attack in separate places. But I am not aware of any volume whose major function is to critique the worst in one place. Into this void step two fearless writers,Bob Levy and Chip Mellor, who through their work have been deeply involved in shaping our legal and political culture. (From the Foreword by Richard A. Epstein, Professor of Law, University of Chicago)
A passionate, thoughtful, provocative, and eminently readable book by two of America's most influential libertarian lawyers and legal thinkers. (Eugene Volokh, Professor of Law, UCLA; Founder of the Volokh Conspiracy Blog)
An easy read, and a very informative primer on some long-neglected cases. |fLyle Denniston, Scotus Blog
Levy and Mellor offer fascinating insights on twelve of the most important and controversial cases of our time. Readers will gain new appreciation for the Supreme Court's role in affecting their lives and liberties. With that appreciation will come heightened understanding of the stakes in future Supreme Court nominations. (Nadine Strossen, Former President, American Civil Liberties Union)
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Top Customer Reviews
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.
The main shortcoming of the book is that it is written for readers already inclined to agree with it and will probably not persuade many others. It is not the authors' conclusions that are generally problematic, but rather their lack of adequate argumentation in support of them. They continually assume a premise and criticize the Court for departing from it, but don't do the work of actually establishing the premise itself.
For instance, the authors being libertarians, much is made of the modern Court's failure to protect economic rights such as the claimed right to earn an honest living. The right to earn an honest living, however, is not a right enumerated in the Constitution; if it exists, it exists as an unenumerated right. The authors point to the Ninth Amendment, which states that the enumeration of some rights should not be read to deny the existence of unenumerated ones, but the Ninth Amendment is not itself a substantive source of unenumerated rights. It only stands for the proposition that unenumerated rights exist; it does not tell us anything about their content. This poses a dilemma which has beguiled judges since the nation's founding - how to substantively define unenumerated rights without merely imposing one's own subjective policy preferences as law. Levy and Mellor do not offer any general guidance in this endeavor, and in the specific example of the asserted right to earn an honest living, they do not offer an argument as to why it in particular should be considered as such. They simply take it for granted. This is extremely lazy legal reasoning and causes THE DIRTY DOZEN to suffer a disappointing lack of depth.
An additional criticism is the inconsistency with which the authors apply their constitutional principles. Repeatedly, they make the indisputable point that a Supreme Court justice's constitutional role is to faithfully interpret the Constitution, not make policy. Yet Levy and Mellor, though acknowledging Roe v. Wade was wrongly decided and a "dreadful case," and though it was one of the top vote-getters in a survey of their colleagues upon which they relied in making their list, amazingly excluded it from the "dirty dozen" on the basis that they consider Roe palatable from a policy standpoint. It is patently hypocritical to castigate the Court over the course of twelve chapters for deciding constitutional issues on policy grounds and then excuse it in a postscript for doing the same thing.
The authors, though, should be commended for their welcome argument in the afterword on behalf of the need for judicial engagement. Reacting to the excesses of activist liberal judges, many on the Right have fallen into the trap of embracing judicial restraint and rubber-stamp-like deference to the legislature as the touchstone of their jurisprudence. As John Roberts' decision in the ObamaCare case has shown, such a philosophy is just as pernicious to the Constitution and inevitably leads to an expansion of government power and an erosion of individual freedoms. The Court's obligation is neither activism nor restraint but fidelity to the Constitution. That is the only thing, Levy and Mellor correctly conclude, which will restore the appropriate balance between the government and the people and prevent the "dirty dozen" cited here from multiplying.
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.
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