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Book Excerpts
The Dirty Dozen
Robert A. Levy and William Mellor 05.02.08, 1:03 PM ET

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Excerpt from The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Robert A. Levy and William Mellor ($26, CATO, 2008).

Too often, Americans take for granted that they are free.

But 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?

Of course not.

So why are we, in many respects, less free now than we were 200 years ago? How did we get from our Founders' Constitution, which established a strictly limited government, to today's Constitution, which has expanded government and curtailed individual rights? That's the story of The Dirty Dozen.

This book is about 12 Supreme Court cases that changed the course of American history--away from constitutional government. Surprisingly, few of these cases are widely known, despite their enormous impact. Maybe McConnell v. Federal Election Commission (2003), because of its recent vintage, is recognized as the case that gave political speech less First Amendment protection than flag-burning or Internet pornography. But how many of us recall that Wickard v. Filburn (1942) paved the way for the noxious notion that Congress, under the guise of regulating interstate commerce, can criminalize the use by critically ill patients of medical marijuana, grown and distributed in a single state, free of charge, under a doctor's prescription, in accordance with state law? And how many of us have heard of United States v. Carolene Products (1938), in which an obscure footnote virtually eliminated judicial review--that is, the power of the courts to examine, modify, and even overturn acts of the executive and legislative branches--when government restricts key liberties, such as the right to earn an honest living?

Whether it's political speech, economic liberties, 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. Alexander Hamilton labeled the judiciary as "the weakest of the three departments." If only he had been correct when he wrote in Federalist No. 78 that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution."

Nor could James Madison have envisioned that the Court would be complicit in the exponential growth of the federal government. "The powers delegated by the proposed Constitution to the Federal Government," said Madison in Federalist No. 45, "are few and defined. Those which are to remain in the State Governments are numerous and indefinite." Would that it were so. Over the 12-month period ended March 31, 2006, the federal government published more than 77,000 pages of new rules that had been proposed or implemented by various regulatory agencies. That is not the way America was meant to operate. From our founding, we were supposed to have a government of limited power and maximum freedom for the individual. Instead, we have been afflicted by a vast enlargement of federal power, condoned by a Supreme Court that has selectively protected some--but not all--of our constitutionally guaranteed rights.

The Court has imposed through the back door what the Congress and the states could not accomplish through the amendment process. By misinterpreting cases that have raised key constitutional questions, the Court has expanded government and curbed individual rights in a manner never intended by the Framers, with profound implications for all Americans. Seldom 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. The Framers intended for the elected representatives of the people, not the Supreme Court, to change the Constitution if and when it needed to be changed. Instead, a Court consisting of unelected justices with lifetime appointments has rewritten the Constitution without input from, or accountability to, the people of the United States.

Some of the damage occurred long ago. For example, in Dred Scott v. Sandford (1857)--probably the Court's most infamous decision--Chief Justice Roger B. Taney held, among other things, that black slaves were property, not citizens of the United States. And in Plessy v. Ferguson (1890), the Court upheld a Louisiana statute requiring railroads to provide equal but separate accommodations for the "white and colored races." As repugnant as those cases were, they are no longer the law of the land. Scott was superseded by the 14th Amendment (1868), and Plessy was overruled by a series of cases beginning with Brown v. Board of Education (1954).

Much of the Court's real mischief arose later, during the New Deal, and continues today. That period--from 1934 until today--is the focus of The Dirty Dozen. In the next 12 chapters, we identify and dissect the worst of the Court's post-1933 decisions. The goal is to untangle those complex legal opinions and explain how they affect each and every one of us. We gear our discussion primarily to non-lawyers, with the hope they will gain a greater appreciation for the crucial role of the Supreme Court in securing liberty.

Friends of the Constitution who cherish personal freedom and limited government have good reason for concern about the modern Court. The Dirty Dozen is a litany of concerns--using 12 cases to demonstrate how the Court has too often abandoned the principles that were painstakingly and ingeniously shaped by our Founding Fathers.

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