Ironically, it was a jurist, Judge Gideon J. Tucker, who is credited with the oft-quoted assessment “No man’s life, liberty or property is safe while the legislature is in session.” In “The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom,” libertarian lawyers William Mellor, president and general counsel for the Institute for Justice, and Robert Levy, senior fellow in constitutional studies at the Cato Institute, make a strong case that the U.S. Supreme Court is no less culpable in undermining those unalienable rights that the Declaration of Independence declared “to be self-evident.”
Every presidential election cycle, including the present, we are reminded of the importance of the presidential power to appoint justices to the Supreme Court. In the context of a concern for individual rights versus expansion of government authority, current presidential candidates provide little promise of “straight talk” about judicial philosophy and less “hope for change.”
“Often the debate over Supreme Court nominees is framed in terms of a specific issue — abortion, gun control, the death penalty or gay rights,” Mellor said at a Cato Institute Book Forum earlier this month. “In other instances, candidates vow to appoint justices guided by allegiances to ill-defined concepts like ‘judicial restraint’ or ‘compassion.’ Despite such focus on the judiciary, we rarely hear a discussion of the systemic, negative impact of Supreme Court decisions on our governing institutions and our rights.”
Mellor and Levy boldly step into that breach.
12 cases that changed America
“‘The Dirty Dozen’ is about 12 Supreme Court cases since the New Deal that changed the course of American history away from Constitutional government to government of unbridled power,” said Mellor in a conversation we had on the “David Strom Show.” “The Supreme Court has effectively amended the Constitution, expanding the government, eroding our rights, and fundamentally changing the way the Constitution is interpreted.”
The 12 cases that comprise “The Dirty Dozen” are not necessarily well known — even by lawyers — yet they have profound implications for all of us.
“What’s happened since the new deal is the court has moved away from a presumption of personal liberty to a presumption of government authority,” Mellor explained. Government, not the individual, gets the judicial benefit of doubt. The result is a ratchet effect — seemingly minor cases reinterpret major Constitutional principles like the sanctity of contracts and regulation of interstate commerce. From the new judicial starting point, future courts ratchet up to more government authority and less and less individual freedom.
Case in point is the 1937 case of Helvering v. Davis, one of “The Dirty Dozen,” in which the Supreme Court decided that the General Welfare Clause of the Constitution gives government the authority to collect money from some taxpayers and redistribute it to others.
Beachhead for the entitlement society
The narrow legal question in the Helvering case was whether certain provisions of the Social Security Act violated the 10th Amendment of the Constitution, which reserves to the states those powers not delegated to the federal government. At stake, however, was the larger issue of whether the Constitution authorized the federal government to collect money from some taxpayers and redistribute it to others. In essence, the court was being asked to find where in the Constitution the federal government is authorized to rob Peter to pay Paul. The court found its answer in the General Welfare Clause.
“Helvering is not a case I encountered in law school,” said Mellor. “Not many law students do. Yet it’s a case that has had tremendous impact on the expansion of government authority to lay taxes and redistribute the proceeds.”
Among the list of enumerated powers of Congress in Article I Section 8 of the Constitution is the “Power To lay and Collect Taxes … [to] provide for the common Defense and general welfare. …” Among the founders, James Madison and Alexander Hamilton best represent differing perspectives on the General Welfare Clause, but neither view is anywhere near as expansive as the position of the court took in Helvering, noted Mellor.
Madison considered “general welfare” as shorthand for the enumerated powers of government. The federal government had the authority to tax and spend within the context of enumerated powers. Hamilton was more expansive; government had the authority to tax and spend to promote the general welfare irrespective of enumerated powers, but only for the general welfare, not for specific benefit of local communities or individuals.
What set Helvering apart from prior cases testing government authority to redistribute tax dollars was it did not simply defer to the Hamiltonian definition of “general welfare”; Helvering set precedent that the court would henceforth defer to Congress in determining what legislative acts served the general welfare. As Mellor and Levy write, “Congress itself would be monitor of what Congress could do.”
Writing for the 7-2 majority in Helvering, Justice Benjamin Cardozo said the concept of general welfare is fuzzy not static (the living Constitution philosophy). “Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation,” he wrote. “What is critical or urgent changes with the times.”
And what is “critical and urgent” is not, according to Cardozo “confided to the courts. The discretion belongs to Congress …” and the Court determined that Congress had a reasonable basis for believing that security for the elderly is a national problem that separate states cannot tackle effectively. Of course, the same could be said for any number of tax and redistribution programs, and that is precisely the ratchet effect that has taken place.
In the 70 years since the Helvering decision, not once has the Supreme Court invalidated an act of Congress because it violated the General Welfare Clause.
“In Helvering the Court set the stage for an unprecedented transfer of wealth,” said Mellor. “The ‘entitlement society’ we have today starts with the Supreme Court’s ratification in Helvering of government’s authority to redistribute wealth.” It’s earned its place among the “Dirty Dozen.”
Advice and Consent
A nagging question that pervades “The Dirty Dozen” is “Does the Constitution really mean only what the Supreme Court says it means?”
“That’s the way it has played out,” said Mellor, “but that is not the way it should be. The words of the Constitution have meaning.”
Supreme Court nominees are subject to approval by the U.S. Senate; Mellor laments that as a result of the contentious confirmation hearing for Robert Bork, judicial confirmation hearings have become a stage for “Kabuki theater” rather that a forum for robust discussion of judicial philosophy. Nominees try to be as noncommittal as possible; questioners are as partisan as possible.
“The next president should be unafraid to put forth a nominee with a well-articulated judicial philosophy that will withstand the scrutiny of the senators and the public,” said Mellor. That doesn’t mean the nominee must reveal how he or she would rule on specific cases or specific issues. The proper interrogation is broader, yet more precise.
The specific question Mellor thinks ought to be asked of any judicial nominee is, “Do you believe the Constitution provides only limited, enumerated powers to government, or do you believe in a living Constitution?”
Mellor acknowledges that his and Levy’s judicial philosophy is not the only one in the marketplace of ideas. Current Supreme Court Justice Stephen Breyer is a strong advocate of the living Constitution philosophy, the notion evident in Helvering that the Constitution is changeable outside the amendment process. Noted Harvard Professor Ronald Dworkin supports Constitutional interpretation based on the idea of advancing equality.
“Those judicial philosophies ought to be showcased in confirmation hearings,” said Mellor. “A nominee’s philosophy of jurisprudence ought to be discussed so senators and the public know what is at stake.”
It is, said Mellor, the responsibility of senators to vote up or down on judicial nominees based on judicial philosophy, not political considerations and not based on character assassination. “Judging the long-term implications of a nominee’s judicial philosophy — expanding government authority or preserving individual rights — is the prerogative and responsibility of the Senate,” he said.
Whom should we trust
When it comes to choosing justices that will interpret the Constitution with a presumption of personal liberty instead of a presumption of government authority, Mellor laments the current crop of presidential candidates offers “very, very sad prospects.”
“Barack Obama and Hillary Clinton have both adopted the living Constitution philosophy, which is a prescription for unshackled government power,” said Mellor. “And John McCain is all over the place. His judicial philosophy seems to be dictated by his policy judgments, which he wants enacted into law.”
And McCain is the architect of “one of the greatest infringements of free speech this country has ever seen,” according to Mellor, the Bipartisan Campaign Reform Act (the McCain-Feingold bill), which gutted political speech, and was upheld in McConnell v. Federal Election Commission (2003), one of “The Dirty Dozen.”
The necessity of understanding the judicial philosophy of Supreme Court nominees and the presidential candidates that select them is a key takeaway from “The Dirty Dozen.”
“The Supreme court has a vital role to play in limiting government,” said Mellor. “We need to move away from an outcome-oriented Court to one based in consistent judicial philosophy as expressly found in the Constitution. As it is now, we don’t know what we’re getting. We must impress on senators the need for an engaged discussion of jurisprudence, not just partisan attack.”
We shouldn’t have fear for our lives, liberty and property when the Supreme Court is in session.
‘The Dirty Dozen’
It doesn’t seem to matter whether it’s a “conservative” or a “liberal” Supreme Court; each is capable of manipulating the Constitution to a desired outcome. That is evident from the cases delineated by Mellor and Levy in “The Dirty Dozen.”
The book is divided into two sections. The first deals with cases that have expanded government power; the second with decisions that have limited personal freedom. It’s a very readable book, informative for lawyers and non-lawyers alike. In addition to Helvering v. Davis (1937), which expanded government authority to redistribute tax dollars, the following cases make up the “Dirty Dozen.”
Wickard v, Filburn (1942): Opened the door to expanded use of the Commerce Clause to justify government intervention in state and personal affairs.
Home Building & Loan Association v. Blaisdell (1934): Eviscerated the Contracts Clause of the Constitution.
Whitman v. American Trucking Association, Inc (2001): Set the stage for rule by unelected regulatory agencies.
McConnell v. Federal Election Commission (2003): Curtails the right to support or criticize political candidates.
United States v. Miller (1939): Held individuals do not have an individual right to possess firearms.
Korematsu v. United States (1944): Affirms the idea that equal protection under the law can be suspended during wartime.
Bennis v. Michigan (1996): Allows law enforcement agencies to seize property in criminal cases from innocent individuals.
Kelo v. City of New London (2005): Redefines the concept of “public purpose” to justify taking of private property from one individual and transfer it to another.
Penn Central Transport Co. v. New York (1978): Protects governments from paying compensation when regulations reduce property values.
United States v. Caroline Products (1938): Introduced the infamous “Footnote 4” into the legal lexicon, which declares that some deserve more protection than others.
Gutter v. Bollinger (2003): Concludes that racial preferences are not discriminatory.