How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom

June 1, 2008

The Dirty Dozen is available at IJ’s Freedom Market online store.  Ever wonder how our nation changed from a country with a Constitution that limited government power to a land where the Constitution is interpreted to limit the rights of the citizenry? And what can be done to restore the founding vision for a free and prosperous nation? A new book called The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Sentinel, $25.95) offers the answers. Written by IJ President Chip Mellor and IJ Board Member (and senior fellow in constitutional studies at the Cato Institute) Bob Levy, The Dirty Dozen examines the 12 worst U.S. Supreme Court rulings of the modern era—decisions that led us away from our Founders’ Constitution. Mellor and Levy ask, “If America truly is the Land of the Free, should we have to ask for government permission to participate in an election? Or pursue an honest occupation? And should our government be empowered to take someone’s home only to turn the property over to others for their private use?” They answer unequivocally, “Of course not,” then take the reader through the sad state of America’s current jurisprudence while pointing the way for judges, justices and legal advocates who are inclined to follow a path to greater freedom. Cato Institute’s Roger Pilon (left) moderated a recent event promoting The Dirty Dozen. Bob Levy, center, responds to a question from the audience as his co-author, Chip Mellor, looks on. Richard Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School, provided the book’s preface in which he says, “Into [the] void step two fearless writers . . . . [Mellor and Levy] act with one consistent objective—to increase the protection of individual rights by limiting the size and functions of government. That singular and admirable vision exerts a profound influence on their selection of cases for inclusion in The Dirty Dozen.” Lyle Denniston—the dean of the U.S. Supreme Court beat, who has covered the Court for more than 50 years for various news organizations, and who now edits the influential website—wrote, “The book is an easy read, and it is a very informative primer on some long-neglected cases. Each chapter begins with a discussion of the constitutional issue at stake (with the language of the Constitution on the point spelled out), followed by the facts of the key case or cases, the critique (“Where Did the Court Go Wrong?”), and concluding with implications for the present and future. . . . The book could well become a document of some import during this year’s presidential election campaign, if it should turn out that the voting public (and the candidates) take any interest in the kind of judicial philosophy that they want to see pursued in future appointments to the Supreme Court.” Despite the enormous impact these rulings have had on the everyday lives of Americans, few of the 12 cases are widely known. Whether it is political speech, economic liberty, property rights, welfare, racial preferences, gun owners’ rights, or imprisonment without charge, the U.S. Supreme Court has behaved in a manner that would have stunned, mystified and outraged our Founding Fathers. Since the New Deal, the Court has expanded the reach of government and restrained the rights of individuals. The following are among the cases featured in The Dirty Dozen: Helvering v. Davis (1937) allowed the federal government to tax and spend for the “general welfare,” thereby opening the floodgates of the redistributive state—taking money from some and giving it to others, without any meaningful constitutional constraints. Wickard v. Filburn (1942) let Congress use the Interstate Commerce Clause to restrict activities that are neither interstate nor commerce, thus extending federal regulatory authority to nearly every productive activity and eviscerating the principle that federal powers are limited to those enumerated in the Constitution. Kelo v. City of New London (2005) declared that the government can seize private property and transfer it to another private owner, providing one more deplorable example of eroding property rights. The decision permitted local planners to run roughshod over isolated and vulnerable members of society. Levy said, “The Court’s primary responsibility is to secure individual rights and guarantee a federal government of limited and enumerated powers. Sadly, that’s not what the Court has done since the New Deal. It’s time to restore constitutional government.” Mellor reminds readers, “Judicial activism created new constitutional rights out of whole cloth and erased rights that are constitutionally protected. Only principled and consistent judicial engagement can restore proper respect for the Constitution as it was written.” And those who know Mellor and Levy well know that they back up statements like that with their own actions: each has been centrally involved in legal cases brought before the U.S. Supreme Court—from those dealing with economic liberty to property rights to Second Amendment rights and more—to restore constitutional protections to the public and limit the size and scope of government. The Dirty Dozen is available in bookstores across the country and through John E. Kramer is IJ’s vice president for communications.

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