Has the Supreme Court eroded freedom?
The power of our highest court occupies center stage in "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom" by Robert A. Levy and William Mellor, now out in paperback. Levy, chairman of the Cato Institute, and Mellor, president and general counsel of the Institute for Justice, worry that the Supreme Court has led the country away from a vision of the Constitution established by the Founding Fathers.
GUEST BLOGGER: Robert A. Levy
How did we get from the Founders' Constitution, which established strictly limited government, to our contemporary Constitution, which has expanded government and curtailed individual rights? Much of the damage can be traced to a handful of post-New Deal Supreme Court cases that changed the course of American history, with adverse effect on many of today's key policy debates.
Here are just a few of the issues:
Mandatory Health Insurance A 1942 case, Wickard v. Filburn, paved the way for the noxious notion that Congress, under the guise of regulating interstate commerce, can punish the failure to purchase a product -- health insurance -- for which there is no legal interstate market. Of course, if Congress can mandate the purchase of health insurance, why not the purchase of exercise equipment or a new fuel-efficient car? The individual mandate would extend the dominion of the federal government to virtually all manner of human conduct -- including non-conduct -- by establishing a police power that is nowhere authorized in the Constitution.
"No State shall ... pass any ... Law impairing the Obligation of Contracts," states the Constitution. Clear enough? Not in Home Building & Loan Association v. Blaisdell (1934). The Supreme Court upheld a Minnesota statute that -- see if this sounds familiar -- postponed mortgage payments for financially troubled homeowners. Never mind the contract. We're now seeing a replay as creditors are forced to waive foreclosure on sub-prime mortgages, even if there was no fraud in the bargaining process.
In a series of cases culminating with Whitman v. American Trucking Associations (2001), the Court ignored the Constitution's very first sentence after the preamble: "All legislative Powers ... shall be vested in a Congress." For decades, Congress has delegated more and more lawmaking power to unelected bureaucrats in 300-plus executive departments and administrative agencies. That is how Treasury Secretaries Henry Paulson and Timothy Geithner were able to bailout banks, automobile companies, and insurance companies -- making up the rules as they went along, without input from Congress or recourse by the voters.
The infamous 2005 ruling in Kelo v. City of New London allowed private homes to be condemned by government so the property could be transferred to other private parties for economic development. The justification was not highways or traditional public uses, but rather the illusory promise of a higher tax base and more jobs. Nobody's home is safe from the government bulldozer when local planners can run roughshod over the most isolated and vulnerable members of society.
The list could go on. Whether it's political speech, economic liberties, property rights, or racial preferences, the Supreme Court has behaved in a manner that would have mystified and outraged our Founding Fathers. The federal government is now immersed in matters ranging from public schools, to welfare, retirement, medical care, family planning, and even aid to the arts -- none of which can be found among Congress's enumerated powers. It's time for the Court to bind the legislative and executive branches with the chains of the Constitution.
By Steven E. Levingston |
January 12, 2010; 5:30 AM ET
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