The Dirty Dozen:

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):


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