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The Supreme Court’s Attacks on Freedom, Part 1


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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.

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    George C. Leef is the research director of the George C. Leef is the research director of the Martin Center for Academic Renewal in Raleigh, North Carolina. in Raleigh, North Carolina. He was previously the president of Patrick Henry Associates, East Lansing, Michigan, an adjunct professor of law and economics, Northwood University, and a scholar with the Mackinac Center for Public Policy.