I recently posited a quick litmus test for determining whether someone is a libertarian.
Well, here’s a test to see whether someone is a libertarian or a conservative: Review this Human Events list of the supposed “Top 10 Supreme Court Decisions That Should Be Reversed” and see how many you agree with. A conservative would agree with all or most of them; a libertarian would scratch his head at many of the choices (not all, but most).
Speaking of litmus tests, I suppose that, to be a proper (i.e., dogmatic) conservative, it’s mandatory that Roe v. Wade top any such list. Ditto probably for Lawrence v. Texas being an automatic Number Two.
In any case, here is my list (in descending order) of the ten worst Supreme Court decisions that are still good law. See if you can sense a pattern. And if you like my list more than the Human Events list, then congratulations — you’re a libertarian and not a conservative.
1. McCulloch v. Maryland, 17 U.S. 316 (1819)
–Rendered the Necessary and Proper Clause an expansion of, rather than a limitation on, Congressional power and laid the groundwork for changing the default standard of judicial review from strict scrutiny to mere rationality.
2. The Slaughterhouse Cases, 83 U.S. 36 (1872)
–Rendered the Fourteenth Amendment Privileges or Immunities Clause a nullity and delayed the incorporation of the Bill of Rights to apply to the states and not just to the federal government.
3. Wickard v. Filburn, 317 U.S. 111 (1942)
–Rendered the Commerce Clause a nullity (or, worse, a monstrosity) and initiated the entire federal regulatory leviathan.
4. University of California Regents v. Bakke, 438 U.S. 265 (1978) and progeny, especially Grutter v. Bollinger, 539 U.S. 306 (2003)
–Rendered the Equal Protection Clause a nullity in the context of higher education by permitting reverse discrimination in college admissions in the name of creating “diverse” environments.
5. Kelo v. New London, No. 04-108 (2005)
–Rendered the “public use” clause of Fifth Amendment eminent domain a nullity.
6. Buckley v. Valeo, 424 U.S. 1 (1976) and progeny, especially McConnell v. Federal Election Commission, 540 U.S. 93 (2003)
–Rendered the First Amendment less than absolute in the context of campaign advertising and financing.
7. Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980)
–Reinforced the rendering of the First Amendment less than absolute in the context of truthful commercial advertising.
8. The Supreme Court’s Entire Fourth Amendment Jurisprudence
–Almost every search-and-seizure case the Court hears results in a new exception to the Fourth Amendment. Exceptions become the rule, and the rule becomes the exception. The Fourth Amendment may not yet be a nullity, but it is essentially a “Swiss Cheese” amendment, since it is now so full of holes.
9. Korematsu v. U.S., 323 U.S. 214 (1944)
–Elevated the War Power of Congress and the Commander-in-Chief Power of the Executive above the Fifth Amendment Due Process Clause in the context of national security. Note that Korematsu is, technically, still good law; it was never expressly overturned. That is not to say that we are likely to bring back internment camps any time soon. On the other hand, given the current Administration’s cavalier attitude toward civil liberties in a time of threats to national security (i.e., war), the legacy of Korematsu must not be forgotten. (See also this post.)
10. Baker v. Nelson, 409 U.S. 810 (1972)
–A non-case by the Court, technically a “dismissal for want of a substantial federal question.” This non-ruling, issued shortly after Loving v. Virginia, 388 U.S. 1 (1967), is occasionally used, incorrectly, to assert that the Supreme Court has expressly held that there is no constitutional right to same-sex marriage. That is patently false; for details, see my previous post. This non-ruling has been rendered a nullity by other Supreme Court cases that have clarified and expanded upon Loving, especially Zablocki v. Redhail, 434 U.S. 374 (1978), but still gives anti-gay bigots a tool, albeit a blunt one, when attempting to confuse the issue.
Special Bonus Case:
11. Bush v. Gore, 531 U.S. 98 (2000)
–I include Bush v. Gore not because I believe it was incorrectly decided, but rather because in my view the Court should have declined, on political question grounds, to hear the case at all. Taking the case seriously damaged the Court’s reputation, especially in the eyes of those who were upset that the Court prevented fraudulent Gore voters from stealing the election. Had the Court sidestepped the issue, the election would still have gone (correctly) to Bush, since the Florida legislature (or, if necessary, the House of Representatives) would have sided with Bush anyway. The Court should not have sullied itself by involving itself with that unfortunate incident.
Hat tip to Rossputin — but be sure to read my response to his view that the famous “Footnote 4″ of U.S. v. Carolene Products, 304 U.S. 144 (1938) is the worst Supreme Court decision of all time.
9 responses so far ↓
Link mahndisa // Jan 22, 2006 at 3:55 am
01 22 06
Hey there: Good post. I agree with your assessments on almost every case,except how you characterized the Bakke Case. I think he was a victim of AGE discrimination, and his attorney was a fool for playing the race card. For insight into this, check out this book by Bell. He explores the case and shows that Bakke was a victim of discrimination, but it was rooted in ageism. The students who were admitted under the EOP program's seats didn't affect his chances because well-read the book. I don't think discrimination of any sort is ever right. Yet when it comes to the government taking some responsibility for it citizenry, I get a bit confused. As much as I would prefer little government intrusion in my life, I still think that if the government was ever to blame for creating LAWS that sanctioned discrimination, then it should be the government's job to rectify it somehow. That is another story for another post though. Good post!
I suppose by your criteria, I am ninety percent libertarian. But honestly, just an Independent. On fiscal issues, I am a real CATO lover but have found that many so called conservatives are really populist protectionists who don't believe in conserving anything!
Link Tony // Jan 22, 2006 at 10:24 am
I love that the Human Events list had no underlying principle of limited government and economic freedom. It was there in certain cases, but in no way did they let principles override their fuzzy preference for moral and traditional values. So, while I was nodding my head on a few, the rest made me want to punch the screen.
Your list is much better. I like that you relied on the Constitution, and how the Supreme Court ignored it, to show why your listed cases are terrible. What a concept.
Personally, I'm most amazed at Korematsu. Growing up, I don't recall ever reading about the Japanese internment camps or hearing a teacher discuss them. I'm sure most Americans are no different. When I finally learned a little about it a few years ago, I'm stunned at how many so-called limited government conservatives love Korematsu. We should've moved beyond this by now, but the current illegal immigration xenophobia makes it clear we're not.
Anyway, great list.
Link Steve Podraza // Jan 22, 2006 at 4:19 pm
I don't remember if there was a specific case which achieved this, but what about the transition to the idea that "rules" are not laws and therefore don't need to be passed through two houses of congress and signed by the president? Whatever case(s) this is, it belongs on the list.
[Kip replies: Not sure what you're referring to -- maybe the Chevron doctrine regarding administrative agencies?]
Link Brandon Berg // Jan 22, 2006 at 4:47 pm
Shouldn't there be an "Everything is interstate commerce" case in there? Wickard, maybe?
Link Steve Podraza // Jan 22, 2006 at 5:20 pm
I'm not really sure what I'm referring to either, though Chevron sounds familiar. I just remember from my admin law classes that the first things we read were cases establishing the constitutional legitimacy of the rulemaking authority of administrative agencies. The objection was that "laws" must be passed in accordance with the constitutional framework, two houses of congress and a president. Regulations carrying the force of law were being passed without this process. The Court ultimately concluded that laws could be passed defining an overarching legislative purpose, and that agencies could then implement that purpose through rules and in doing so, they were not making law, only enforcing it consistent with their constitutional role.
One argument which carried exactly 0 weight among the professors of my law school (Ohio State) was that the framers used procedural rules as means to substantive ends. For example, the 4th amendment should be interpreted as barring the drug war (or any prohibition of private, personal activity) because of the mutual incompatibility of the two. Or in this case, the constitutional process for passing law should be interpreted as a bar on hands-on regulation, since the two are mutually incompatble. I remember the way my admin professor explained it to us. He asked us "why do we need rulemakers? Why can't Congress handle it themselves?" And then he told us the answer, "Because Congress can't handle it themselves, there is too much to do" This was all most of my classmates needed to be forever convinced of the need for regulatory authorities seperate from Congress. Running our government is too big a job for Congress to handle alone.
Link Chris // Jan 22, 2006 at 5:34 pm
I'm not sure that you could find Gerrymandering unconstitutional, but it has led to the death of true competition in legistaltive races. Perhaps a violation of Equal Protection?
Link Steve Podraza // Jan 22, 2006 at 10:04 pm
This might be too radical for Kip, but there are some who think Marbury v Madison belongs on the list. According to my sources at Mises, there was once a competing theory of judicial review, now almost lost to history, which proposed that state governments were to play the role of protectors of the constitution, not the federal courts. According to the people at Mises, Jefferson was a major proponent of this idea.
Marbury v Madison isn't quite as logical as most presume it to be. There is a certain absurdity in the idea that the federal government can be entrusted to act as its own (and only) watchdog. Judicial review, as established in Marbury v Madison, entrusts the federal government to define its own restraints. Of course it is going to define them away, as it has.
There are dangers inherent to allowing state governments this power, sure. But would it be worse?
Link Worst Supreme Court Decisions // Feb 13, 2006 at 8:31 am
Worst Supreme Court Decisions
The cases on this list have been selected for several reasons. Some were chosen because they allowed constitutional freedoms to be infringed. Others were picked because they violated principles of federalism, permitting the unwarranted expansion of…
Link Dave R // Feb 17, 2006 at 10:18 am
First time here.
I'm no lawyer, just some hack that enjoys reading constitutional law but I think I'll take a bite at this.
First, this list is far better than the other one. Also, I may be wrong on this, but it appears that the reason to overturn Everson has nothing to do with the actual merits of the case (which I though was the state reimbursement of public transportation costs incurred by parents sending their children to religious schools).
I immediately agree with 6 out of the 10. Most of what I'm puzzled about is probably a function of my own ignorance on the issue (i.e. McCullough - although I advocated limited Congressional power, I haven't reconciled why rational basis should be an issue).
Issues of campaign finance and commercial speech are areas I need to read more into but given your trend, the fact they are up there doesn't surprise me at all. I can understand why they are up there; however, I can't necessarily make the argument as to whether or not they should be, at least well enough to present.
Question: Would civil rights legislation then be constitutional under the Privileges and Immunities Clause as opposed to the Commerce Clause? I was just thinking about the outcome of the Heart of Atlanta case and was trying to reconcile it to this discussion. I'm no lawyer so what do I know anyway?
Great site.
Dave
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