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.


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:

(Stephanie Kuykendal/Bloomberg News)

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.

Home Foreclosures
"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.

Eminent Domain
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 Politics , Steven Levingston
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Very nice article about medical insurance industry. But you could get medical insurance for your entire family at the best price from http://bit.ly/68ShhE if you spent few mins you can find a good plan.

Posted by: markleak12 | January 12, 2010 5:41 AM

A real and true erosion of freedom came when the Republicans passed the Patriot Act and approved illegal spying on American's. This other stuff mentioned in the article is just noise meant to distract American's from what is going on.

Posted by: Maddogg | January 12, 2010 12:48 PM

Oops, thought for a minute I had made it to the Fox or Wash Times site. But isn't Wash Times going down the tubes? I guess WaPo feels it has to pick up the slack....

Posted by: kashe | January 12, 2010 12:52 PM

Look at other ways the Republicans have eroded freedoms. They force American's to buy products from from Socialistic Communist China, which nation also supports abortion. Very difficult to find something made in the US.

Then the Republicans export all of our jobs to again, China, forcing wages down in the US and costing many American's their jobs.

I guess loss of freedom is in the eye of the beholder.

Posted by: Maddogg | January 12, 2010 1:01 PM

Levy's wrong about the case on health insurance and offers opinion based on strict interpretation when the document is organic because it changes over time.
The actual case is US v. Southeastern Underwriters Association which the Court ruled that the US can regulate the business of insurance under the interstate commerce clause of the Constitution however that case was overturned in 1945 when Congress passed the McCarran-Fergusion Act. In actuality it left open the possibility that the US can regulate it in the future as stated in the Court's opinion. It is also stated in the health care legislation itself which, seemingly, nobody noticed it.

Another fact is the Patriot Act when the Republican Congress ram it through under the guise of national emergency rather than thoughful analysis.

Posted by: beeker25 | January 12, 2010 1:06 PM

For all practical, and except for cosmetic, purposes the United States Constitution and the Bill of Rights NO longer exist.

Posted by: KBlit | January 12, 2010 1:30 PM

beeker25 makes the excellent observation "under the guise of national emergency rather than thoughtful analysis."

Unfortunately this is true about most important legislation; the commentary that it's too important to wait, that it must be done before Congress recesses for... (for any reason, apparently). No legislation can wait to ensure that it's well reviewed, that it is written so people can understand and honestly/in good faith support it or disagree with it on it's own merits. And, because we too often use the guise of national emergency, it's easy for staff to include pork or anything else you want to call items not relevant to the primary legislation.


Posted by: Dungarees | January 12, 2010 1:33 PM

Which body is more dysfunctional: The Senate or the Supreme Court?

Posted by: Bartolo1 | January 12, 2010 2:15 PM

Unfortunately Americans have lost their voice; we've been too busy using our plastic and collecting things since the early 40's. Now, we have reversed roles with our government - they no longer work for us on our dime. Nope, we're the little workabees and it will only get worse, if we don't join together in a fight for our children and grandchildren's lives.

We need to:
Select good old American boys and girls who waych out for our backsides, their Nation and their families.

Then we need to ruthlessly downsize the government, correct the many problems in our Supreme Court, erradicate earmarks, get rid of 2 sets of books (politicians will know what I'm referring to...) Create a strong Nation once again "One Nation Under God" with liberty and justice for all! Last time I looked, "God" is still alive and healthy.

Posted by: annie21 | January 12, 2010 2:20 PM

This isn't political, although it hits the Dem health care.

"The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them."

"It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed."

"With us, all the branches of the government are elective by the people themselves, except the judiciary, of whose science and qualifications they are not competent judges. Yet, even in that department, we call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges."

"It is a misnomer to call a government republican in which a branch of the supreme power is independent of the nation."

All Thomas Jefferson, and there's more. He saw what is happening now - he was right.

Posted by: Obaama | January 12, 2010 2:21 PM

Not even our government and its surpreme court abide by the US Constitution....its a disgrace....this country is no free....our forefathers must be very angry at what has become of this once fine nation. Divided we will fail.

Posted by: galario | January 12, 2010 2:30 PM

RE: Maddogg comments: Funny, but I don't see any blame assigned to either Democrats or Republicans in Mr. Levy's essay, neither party is even referenced. Why do you assume that Mr. Levy is blaming Dems and you feel some knee-jerk urge to counter-blame Republicans.

Mr. Levy (surely a Libertarian, given his Cato Institute credentials) is clearly commenting on the statist nature and dereliction of duty of both the Supreme Court and Congress over the past 70+ years.

Maddogg: Do your homework and learn how to read intelligent discourse with an open and intelligent mind. Maybe stop being so "mad".

Posted by: jthinSD | January 12, 2010 2:31 PM

I completely agree with maddogg's assessment of the pernicious "Patriot Act" (post @ January 12, 2010 12:48 PM), but it is a serious mistake to dismiss these other encroachments... particularly the eminent domain and mandatory insurance monstrosities.

These are among the worst examples of how government power is exploited by the wealthy and connected, to the detriment of everyone else. All too often, the Supremes have come down in favor of expedience, at the expense of principle. And we all pay for it.

Posted by: Iconoblaster | January 12, 2010 2:31 PM

Well what do you know . . . It really looks like parts of the media is paying attention. Now if we can reach ANY/SOME politicians we may actually get some "CHANGE."
I won't hold my breath but at least it feels good that one paper in the Main Stream Media is actually publishing some real questions???

Yahoo!!! Let's hope this is a start.

Posted by: NorCalChuck | January 12, 2010 2:37 PM

I hope the authors' next analysis will be the structure of the United States Senate in which the representatives of 20% of our population have an absolute veto over all legislation introduced in Congress through a procedure which is not sanctioned by the Constitution. This is a far greater danger to the democratic process than anything the Supreme Court has ever done since Dred Scott.

Posted by: jebron1 | January 12, 2010 2:58 PM

Anyone can be the 60th Senator who stops the healthcare bill: Quickly make a friend in Massachusetts who'll vote for a Senator who will uphold the Constitution.

Posted by: John3Wayne | January 12, 2010 2:58 PM

These hypocritical Libertarians miss a more fundamental point: the Bill of Rights has been distorted by the Court's anachronistic and blatantly pro-business position that corporations, probably not even known in Jefferson's time much less deemed legal "persons," are covered by the amendments intended to protect civil liberties. This has often hamstrung States' ability to exercise their police powers in favor of human beings (when States have even tried).

Posted by: tmorgan2008 | January 12, 2010 3:03 PM

It is always great to read the comments, and sooo easy to blame the Republicans for all of our troubles. BUT the comment concerning all jobs leaving the US and going to China etc. That was pushed and signed by the Clinton Administration not the Republicans.

Posted by: beenthere22 | January 12, 2010 3:18 PM

All you government haters please remember that every Federal employee is there because of an act of Congress setting up some program or other. Most of those acts come about because The Great American Public wants services.

Yes, some of the acts were self-serving or ear-marks, but you all need to think of which services you can do without.

Posted by: Bartolo1 | January 12, 2010 3:23 PM

If the American people want things changed, the Constitution has a mechanism for that.

MUCH better that subverting it. But ALL politicans want it out of the way.

Posted by: Obaama | January 12, 2010 3:33 PM

Maddogg and beeker25 are all worked up over the ramming through of the Patriot Act. Maybe the 1st time, but how about the last reauthorization. Fact is that the Patriot Act has both democratic and republican supporters and critics.

The real theme of the article is that libertarians and constitutionalists believe the SCOTUS has given legislative bodies a reach that the framers did not intend.

Argue that question, not red herrings about other laws you dislike, trade policy - issues that aren't germane.

Posted by: beefelt | January 12, 2010 3:37 PM

A solution for the claim that mandating health insurance is punishing those who are young, and elect not to obtain it is to tax all citizens for their proportionate share of a carefully implemented national health insurance program in which health insurers become a public utility, not a profit center. Then provide for a tax rebate for those who have such health insurance in force equal to the amount of costs for their coverage.
Then it becomes similar to many of the other taxes that pay for roads, and other infrastructure improvements which a great portion of the American public does not personally benefit from, but still pays for. No penalty, just a tax rebate.

Posted by: atc333 | January 12, 2010 4:02 PM

Gosh...how'd they miss "share the wealth"?

Posted by: texascorvette | January 12, 2010 4:06 PM

Anyone that can say that the impact of the Patriot Act on individual freedom is even remotely as significant an erosion of individual liberties or a deviation from the original intent of the Constitutions's drafters as decisions such as Kelo or Blaisdell Mortgage is living in a permanent state of Bush Derangement Syndrom. Indeed the so-called infringements imposed by the PA pale in comparison to say, the interment of Japanese Americans that occurred at the hand of the hero of those who would laud decisions such as Blaisdell and Kelo-FDR. Get real!

Posted by: rfd123 | January 12, 2010 4:18 PM

Beware of the words 'internal security,' for they are the eternal cry of the oppressor"--VOLTAIRE

Posted by: wolrap | January 12, 2010 4:36 PM

It's interesting that the cases they cite all deal with money/finance, as if money is equivalent to freedom. I think that gives you an insight into their priorities. They could have also cited some of the cases that deal with our rights to be free from unreasonable police stops/searches/seizures, but they don't. I suppose they could manage to get themselves worked up about civil forfeiture, but that's because forfeiture has financial implications. I guess it's just a question of what's most important to you . . .

Posted by: bucky_katt | January 12, 2010 4:51 PM

In reviewing the various comments there is one observation that seems to be missing. The Constitution gives the President the right to select the Supreme Court Justices along with all the other Federal Justices. Then with the "Advice and Consent" of the Senate they are confirmed. It cannot be ignored that these Justices are in the truest sense political appointees. As such their decisions will inevitably follow the political philosophy's of the administration that appointed them.
There has been little evidence of Judicial Independence since the Marshall Court and the Marbury v. Madison decision in in 1803. While the case decided the concept of the court being the maintaining consistent balance of the government.
As for the power of the federal government, the key to the government extending its reach in the last 100 years has been the Interstate Commerce Act. The government has used that act to legitimize everything from insurance rates to civil rights.
We are a country that knows just enough about our history to make us ethnocentric but not enough to make "informed" decisions about the actions of government. We as a people are every bit as responsible for our situation as the Congress and the Court. We either cast our vote blindly without understanding the issues or we don't vote at all and then complain. Consistently our failure to know and understand our own historical roots has placed us in the position of being the lambs of government and not the shepherd as the founding fathers intended. We have no one to blame but ourselves.

Posted by: chanceheberling | January 12, 2010 5:11 PM


and Congress wants to do so even more

Posted by: Obama_TRAITOR_in_Chief | January 12, 2010 7:10 PM

Who needs to wait all the way until Saturday night when the SNL comics take the stage when all I have to do is read some of the comments here to get a good chuckle. My favorites are the ones where the 'Commenters' try to sound like they're smarter than the authors.

One tiny example is the comedian who thought it was a Republican congress that passed the Patriot Act.

And then there's the other jokester who thinks that all company owners are Republicans... does that mean Democrats aren't entrepreneurial enough to run a profitable business? Or maybe they wouldn't dirty their lily-whites making money?

By the way, economic freedom is inextricably linked to personal liberty - one of the reasons for the American Revolution in the first place.

Lastly, where did that catchy "government haters" come from? How about "government resistors" or "government watch-dogs" instead? "Hate" is such a provocative word, not to mention childish.

Posted by: Longtooth1 | January 12, 2010 8:32 PM

Every generation should get a chance at a new Constitutional Assembly. Maybe not for a new Constitution (half the states would want to secede) but to leave a working guide that would keep the Justices from legislating, which they sometimes may have done to fill the voids in an 18th century document.

Posted by: eliseom | January 12, 2010 9:37 PM

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