Over the summer I read Bob Levy and Chip Mellor's book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. Levy is a Fellow at the Cato Institute (and a lawyer in Heller, of course) and Mellor is president and general counsel of the Institute for Justice.
The twelve cases are (each also has a runner-up) (I've hidden the list for those who want to skip over this detail for now):
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The book is great fun. First, it is marvelously written. I read it in a weekend. Each chapter starts with the relevant constitutional text and the question "What is the constitutional issue?" which describes some of the history around the constitutional clause and question. Then they move onto the facts of the key case in each chapter. Finally, they ask "Where did the court go wrong?" and "What are the implications?" It is a very user-friendly format. Moreover, they do a great job of providing the legal and historical context for each of the cases in question before finally moving on to why the holding of the case in question has proven important.
It is clear that Levy and Mellor aimed this book at a broader popular audience and not just lawyers and it seems to me that they succeeded. I think the book would be especially useful and interesting to libertarian-leaning laymen and especially to undergraduate students who are interested in the basic countours of constitutional history but who have not been exposed to constitutional law in depth.
But the book is also useful for law professors and law students. For one thing they highlight some cases that get minimal play in law school but which are important in constitutional history, such as Blaisdell and the Gold Clause cases. On several case they also provide factual information that I wasn't previously aware of, especially in cases like Kelo in which IJ was involved. It might also made a nice complement for students currently taking Constitutional Law to get an interesting perspective on some of the cases they are reading.
Second, I'll confess that I'm a sucker for lists. The beauty of lists is that they give you something concrete to think about and argue over. So, for instance, they have special chapters at the end on Roe v. Wade and Bush v. Gore explaining why those cases did not make the dirty dozen. Roe because they say that state legislatures would've probably enacted laws similar to Roe so the implications were modest and Bush v. Gore because it was correctly decided so they can't say that the Court went wrong. I think it is reasonable to challenge the exclusion of Roe with the objection that the implications of Roe were not just limited to the particularities of abortion law but rather in poisoning the whole process of judicial selection, but that is a judgment call about how broadly and speculatively to define the implications of particular decisions. Richard Epstein's Preface picks up on this and gives his personal thumbs-up or thumbs-down to various cases on the list, which makes it more fun to think about this. Richard thinks that Grutter should not be on the list (although I personally find his argument unconvincing), that Miller should not be on the list because it wrong in degree not kind (reasonable firearms regulation is ok, so Miller just went too far but wasn't fatally wrong), and Chevron should be on the list instead of American Trucking (because Chevron is the really problematic decision in this area). I would side with Levy and Miller on the first two of these and I think that reasonable minds could disagree on Chevron vs. American Trucking although I'd probably lean toward Levy and Mellor on that one too.
Third, Levy and Mellor make the case for a new terminology--"judicial engagement." Their rationale here is the principled libertarian rationale that has been around for awhile--when it comes to the constitution, judges can make errors of omission or comission. Because of the excesses of the Warren Court, judicial conservatives (such as Bork and Scalia) have focused their ire and philosophy on errors of comission and have advocated a theory of judicial restraint (often in practice even when not in theory), meaning that they tend to underenforce constitutional rights. Thus, they tend to make erros of omission. By contrast, liberal judges have tended toward errors of commission, essentially inventing novel rights with little constitutional grounding.
Levy and Mellor argue for "judicial engagement," which I take to be a principled, original-meaning inspired method of judicial interpretation. Their central argument is the key libertarian challenge for both conservatives and liberals--there are a lot of individual rights and limitations on government power in the constitution. These include things that aren't trendy, includinging the right to make a living and limitations on the ability of the government to interfere with private contracts. There is no persuasive theory why judges should enforce only some rights in the Constitution rather than all the rights in the Constitution. This, I think, is a powerful argument and one to which I have yet to see a persuasive response.
This also highlights a longstanding concern I've had with judicial conservatives. They are right to observe that in many situations the democratic branches are better interpreters and articulators of majoritarian preferences. But this does not mean that the democratic branches are always better at it. Once you add in the most modest dose of public choice theory it becomes evident that democratic processes are subject to political market failure. And these failures may occur predictably in those cases where today judges are least engaged, such as property rights and economic liberties. I think that conservative distrust of judicial overreaching on social issues (where it appears that democratic processes generally do reflect majoritarian preferences pretty well) has led to undue deference in areas where this is necessarily the case (this is were Ilya would insert a discussion of political ignorance).
Also ironic, of course, is that United States v. Miller is on the Dirty Dozen list, so I guess Bob and Chip will have a built in market for the paperback post-Heller. Or will it now have to be the "Dirty 11"?
Anyway, this is a highly entertaining and readable book. If you are looking for an in-depth treatise on constitutional law, this isn't it. But if you are looking for a nice overview and introduction to the constitutional history of past century, this is a good place to start.
Disclosure: I'm friends with both these guys, Bob has made generous donations to George Mason Law School, and I lecture at IJ programs
1. Miller probably shouldn't have been on the list before Heller, now (duh) it certainly shouldn't be on the list.
2. Kelo is a poor choice for ED; just because a case gets the pub (and the IJ working on it) doesn't mean it was particularly novel.
3. As for the other cases, there are a few I have major quibbles with, but I am more stuck with the overall thrust of the book. First, I think Korematsu is a throw-in (and a poor one at that) to disguise the overall economic thrust of the book. When I survey the modern jurisprudence, the main fault lines I see are:
1. The massive administrative state and the deference we give, which might be okay if there was accountability.
2. Criminal Law. What, no mention of, say, pretext searches?
3. McConnell- after WRTL, why bother?
There are far too many conservative boogeymen on this list (wow, McConnell, Wickard, Carolene, Kelo, Grutter, Penn Central) -- they make up half the cases; of the remainder --
Amer. Trucking is a bad choice, Chevron would be better, especially as it is applied in more APA contexts than just rulemaking.
Korematsu is an example of good reasoning (creating standard of strict scrutiny) with a bad outcome. There are plenty of other national security cases where there wasn't even meaningful review, which is the real problem, making them better cases.
That leaves four cases (1/3) I'd be curious to see what the reasoning.
I just happen to be channel surfing one day and went by CSPAN when these guys were giving a talk about their book a few months ago. I found them facinating and decided I had to read the book.
I am not a lawyer, but I read this book.
I would have to say that it was a really great read. Very very well written with clear explanations and details about the cases they chose. I felt like I learned quite a bit. I had known a touch of these things from my conservative leanings, but they really did expand my knowledge of this legislative history.
I though that they often made a good attempt to fairly present alternative views to show the arguments of the other side as well. Even though in the end, I agreed with their reasons for choosing to argue against the cases they chose.
I would not pass this book up, put it on your reading list. It is not a very long book, reads pretty quickly, and you get a pretty good return on your time invested in reading it.
You're not suggesting that the Court, depending on the case, exceed its authority and render a judgment that clearly, or even arguably, is within the power of the executive or legislative branch, right?
And I guess I'm too slow to understand "political market failure." If a law is passed that "fails," then there are ways to "fix" it. This may happen from time to time ("When Congress makes a joke, it's a law, and when they make a law, it's a joke.") but even if the Court can do it "better" doesn't mean it should.
Or have I totally missed your point?
Prof. Kerr,
I think that Bork's proposal to amend the constitution to allow Congress to override Supreme Court decisions by a simple majority vote shows that Bork is the answer to yuor question.
Yep, the democratic branches will screw up at times. But so will the Courts.
It may be difficult to fix some of the democratic branches' screwups, for the reasons you mentioned. But it is much harder to fix the Court's screwups (like Roe).
Every human institution screws up from time to time. Good system design involves giving more power to the institutions that have the easiest time recovering from their screwups. In government, that's the branches that face elections.
This is precisely the argument that many people feared would be encouraged by adding a Bill of Rights to the Constitution, and it was the main reason for incuding the Ninth Amendment. It is also why the Fourteenth Amendment uses the term "Privileges or Immunities" instead of trying to articulate each and every right held by free people in a free country.
As for the origins of the right to earn a living, it was actually one of the first unenumerated rights ever recognized by the Supreme Court, which has consistently acknowledged its existence ever since. (See the string cite below.) If anything reflects the triumph of personal predelictions over constitutional principle, it is the Court's decision in the 1930s to stop enforcing the right to earn a living in order to help constitutionalize the New Deal.
And speaking of which, where are the "Department of Education" and "Department of Agriculture" clauses in the Constitution? Or the list of plants that you cannot grow in your back yard and use to feed your livestock or give to your friends and neighbors who live in the same state you do? It's remarkable to see people like George Bush and John McCain using the term "strict constructionist" to describe judges who show far more zeal in opposing unenumerated rights than unenumerated powers. Which do you suppose the Framers would have considered the greater threat to the Republic?
For the right to earn a living free from unreaonable government interference, see Dent v. West Virginia, 129 U.S. 114, 121 (1889) (“It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition”); Truax v. Raich, 239 U.S. 33, 41 (1915) (“the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure”); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) (Fourteenth Amendment’s conception of “liberty” includes the right “to engage in any of the common occupations of life”); New State Ice Co. v. Liebmann, 285 U.S. 262, 278 (1932) (“nothing is more clearly settled than that it is beyond the power of a state, under the guise of protecting the public, arbitrarily to interfere with private businesses or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them”); Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 238-39 (1957) (“[a] State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment”); Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) (citizens have a right “to engage in any of the common occupations of life”); Lowe v. SEC, 472 U.S. 181, 228 (1985) (citizens have a right to follow any lawful calling subject to licensing requirements that are rationally related to their fitness or capacity to practice the profession); Connecticut v. Gabbert, 526 U.S. 286, 291-92 (1999) (“this Court has indicated that the liberty component of the Fourteenth Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of private employment, but a right which is nevertheless subject to reasonable government regulation”).
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