View Full Version : Dirty Dozen II

01-16-2010, 7:27 AM
McConnell v. Federal Election Commission (2003)

McConnell was the decision that proclaimed constitutional a shocking assault on the First Amendment, namely the Bipartisan Campaign Reform Act (BCRA, aka the McCain-Feingold Act). The First Amendment clearly states that Congress shall make no law abridging the freedom of speech or of the press. The BCRA places severe limits on those freedoms in political campaigns, yet when the law was challenged the Supreme Court held that it is so important to prevent “the appearance of corruption” in elections that the First Amendment would just have to be set aside. Of the decision, the authors say, “In effect, the Court rewrote the first Amendment so that it mandated fair speech, as perceived by nine justices, instead of ensuring free speech, as intended by the framers.”

This astounding decision will do nothing to stop political corruption, and may actually increase it because, as Levy and Mellor point out, one of the law’s consequences is to make it harder to successfully challenge incumbents. It is all too typical of the Court to allow wishful thinking to trump the unambiguous words of the Constitution.

United States v. Miller (1939)

This is the case that led to the idea that the Second Amendment does not protect the individual citizen’s right to keep and bear arms, but says only that governments are entitled to arm their militias. That bizarre decision led to many draconian anti-gun laws around the country and lower court decisions upholding them.

Fortunately, the recent decision in District of Columbia v. Heller, in which the Court rejected the “collective right” theory of the Second Amendment, takes Miller off the list of the worst cases. Even though the Court did not expressly overrule Miller, Heller rebukes the strange interpretation of the Second Amendment in that case as pertaining only to “militias.”

Korematsu v. United States (1944)

Political “liberals” are forever prattling away that “we” are guilty of sins against various groups, but you don’t often hear them talking about one of the ugliest occurrences in American history — the internment of Japanese-Americans during World War II. It was ordered by the sainted Franklin D. Roosevelt to appease public opinion that had been inflamed by race-baiters on the West Coast. The rights of 120,000 people, most of whom were American citizens, were flagrantly violated and yet when the validity of Roosevelt’s executive order was challenged, the Supreme Court meekly upheld it on the grounds that during emergencies, political authorities must have a free hand to protect the nation. Therefore, due process of law can be ignored.

Decades later (in 1983), a congressional commission reported that the internment was not justified by any military necessity, but rather was the product of “race prejudice, war hysteria and a failure of political leadership.” Nevertheless, Korematsu remains good law, a Supreme Court precedent for other “emergency” measures that deprive people of their rights without due process of law.

That’s why Korematsu is still worrisome. As Mellor and Levy write, “Today, suspensions of constitutional protections are defended on the same grounds that the Japanese internment was justified: national security.” The door is open to heavy-handed abuse of individuals during “emergencies” (which may well become the rule rather than the exception) if officials merely suspect them to be somehow associated with terrorism.

Bennis v. Michigan (1996) This case gave Supreme Court approval to the odious practice of civil-asset forfeiture. Under civil-asset forfeiture laws, government officials are entitled to seize a person’s assets because he was either somehow involved in criminal behavior, or his property was. The theory that “guilty property” can be taken by government goes back centuries, but in recent years it has been expanded to the point where officials look to asset seizures as a means of padding their budgets. It encourages predatory behavior by law-enforcement agents. In Bennis, the Supreme Court could have blown the whistle but did not.

The facts: John and Tina Bennis were married and jointly owned a car. In October 1998 Detroit police officers saw a woman they believed to be a prostitute “flagging cars.” One vehicle stopped, the driver allowing her to get in. The police followed the car at a distance. When it stopped, they approached and found the driver and the woman engaged in sexual activity. John Bennis, the driver, was arrested for indecency and the police confiscated the car under Michigan law.

But what about Tina Bennis? The car was half hers and she had committed no violation of law. Could the government seize property owned by an innocent person? The Court said yes, relying solely on precedent. Chief Justice William Rehnquist wrote, “The cases authorizing actions of the kind at issue are too firmly fixed in the punitive and remedial jurisprudence of the country now to be displaced.” Four justices strongly dissented, but the damage was done.

Bennis has very disturbing implications, among them that people who have done nothing illegal — not having committed so much as a victimless crime — can lose their property because of the illegal conduct of someone else. Also, the case gives the green light to rogue government officials to target nondangerous activities such as prostitution, where the chance to hit the jackpot by seizing high-value property is good.

United States v. Carolene Products (1938)

For 70 years the Supreme Court has adhered to a doctrine that places some rights on a pedestal and others on the floor — where government officials may trample upon them as much as they please. In general, “economic” rights are in the latter class. If politicians want to create monopolies, ban the sale of products, impose absurd licensing requirements, or do other things that obstruct commerce, the Court has said, “That’s no concern of ours — let them do it.”

Carolene Products was a New Deal case that put on clear display the Supreme Court’s indifference to economic liberty. Congress had passed a statute called the Filled Milk Act, which prohibited interstate shipment of “filled milk” — an evaporated-milk product made from skim milk and coconut oil. It had the same taste, odor, color, and cooking properties as regular evaporated milk but cost less. Responding to complaints from the dairy industry, Congress wiped out interstate competition, declaring that filled milk was injurious to the public health. That was just political window-dressing for the blatant act of destroying competition from a product that consumers had safely used for many years. It was nothing but special-interest legislation.

Counsel for Carolene Products showed that there was absolutely no evidence of any harm to consumers from filled milk. Too bad, but the Supreme Court was not interested in such facts. Chief Justice Harland Stone wrote that while some cases call for “strict scrutiny” of legislation, others call upon the Court only to ascertain whether there might be a “rational basis” for it. The mere freedom to sell a product was not important enough to demand “strict scrutiny.” This meant that Congress and state legislatures would not be impeded in passing even the most egregiously anti-competitive laws. The result of the Court’s “rational basis” jurisprudence — that is, its declared indifference to economic meddling — has been, Mellor and Levy write, “an avalanche of special interest legislation.”

01-16-2010, 7:59 AM
The cases authorizing actions of the kind at issue are too firmly fixed in the punitive and remedial jurisprudence of the country now to be displaced.

Holy cow, so the Court basically said that if government and officials have been violating rights and the Constitution for some period of time, that makes it okay!

01-16-2010, 8:20 AM
Not sure about the Miller one. I think the lower courts interpretation of that case made it bad, the opinion wasn't good but not horrible either. As I recall the court was focused on the weapon itself, not on whether the gang banger defendants were militia members.

01-16-2010, 8:30 AM
Not sure about the Miller one. I think the lower courts interpretation of that case made it bad, the opinion wasn't good but not horrible either. As I recall the court was focused on the weapon itself, not on whether the gang banger defendants were militia members.

Yeah, I agree, I think they confused Miller with later lower court misinterpretations of it.

01-16-2010, 8:38 AM
Arrrrgh. Is it time yet?