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

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…

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?

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.

[Kip replies: Not sure what you're referring to -- maybe the Chevron doctrine regarding administrative agencies?]

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.

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!