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The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom
In The Dirty Dozen, two distinguished legal scholars shed light on the twelve worst cases, which allowed government to interfere in your private contractual agreements; curtail your right to criticize or support political candidates; arrest and imprison you indefinitely, without filing charges; seize your private property, without compensation, when someone uses the property for criminal activity-even if you don't know about it.
302 pages, Hardcover
First published May 1, 2008
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May 10, 2017
Ugh. Sometimes I actively choose books I know I’m going to disagree with, just because I do think it’s important to expose yourself to other opinions regularly, and not just constantly read people with the same worldview. But ughhhh sometimes it’s hard not to shred such a book, even when it’s a library book. But it’s my own fault. I knew- I knew- just by the fact that Richard Epstein endorsed it on the back that it was going to be trash. I am just that masochistic.
Scalia, if he were still kicking, would heart this book. Textualism! Originalism! Fossilization! Single-minded libertarian streaks! Pretending to be judicially restrained when, actually, you’re not! Yes, my friends. Dolly Parton has Dollywood, and this book is the paper version of Scalialand. I did not enjoy my stay.
For one thing, it pretends that textualism is the only valid constitutional theory. It’s one of many. It’s fine to write a book from one theory’s point of view, but don’t hold yourself out as the definitive truth.
For example, it loves the Heller/McDonald cases (striking down gun laws federally and state-wise, respectively) because the second amendment says a right to bear arms, damn it. Right, okay, but this is post-hoc justifying, because everyone knows that right is the right to have a militia, not to run around a city with a handgun in your pocket. Handguns weren’t even a thing in the 18th century. You couldn’t reasonably have “concealed carry” of any firearms (muskets don’t fit in your pocket, fun fact). The world has changed in the past 200+ years, and a lot of language in the Constitution reflects prescient awareness of that, and (personally I think) a lot of the language is intentionally worded so as to be abstract enough to stretch to fit new situations as they come up.
Note, that is my personal view. See how I don’t say that it’s the definitive answer, just a theory? This is my bone with this book.
Now, look. I appreciate, really and truly I do, the problem with giving this much power to an unelected group of nine elitist judges. It’s a scary thought to have those 9 monarch-like human beings nomming on their power looming over you, when it’s supposed to be a democratic system of government. But, you know, the thing is... these judges are nominated by someone we did elect democratically (...even when that someone is a box of tools). If you really <3 democracy so much that you worry about SCOTUS being a threat to it… if you love it that much, you should trust it. Because SCOTUS judges are practically elected by proxy. It’s not that different from the electoral college system (voting for electors who will vote for the person we want to be president). If there’s a vacancy on the court, you bet a lot of people will be thinking about that when they decide who to vote for. So if you trust democracy, you should probably also trust SCOTUS. (Yeah, I get that they have life tenure so it’s not a perfect thing, but you should invest some trust in them).
I say that even now, when we have someone like Trump on the presidency and potentially some upcoming SCOTUS vacancies. I don’t have to like it, but the country picked Trump, and so the country picked his SCOTUS nominations, too. We made our bed, and there’s no sense acting like we didn’t.
I don’t love the Heller/McDonald decision for political reasons (I fucking LOVE gun control) and I think it’s funny they call it a Constitution-based decision when, like ALL the cases they denounce in this book, it’s a balancing test between individual and governmental interests- but I don’t think that Heller/McDonald, in doing that balancing test, was overreaching. I don’t like it, but I think it’s a valid exercise of SCOTUS’s power.
I suppose the issue is that the decisions in this book are largely made to protect minorities from the majority will. This is... kind of... the point of SCOTUS- they’re the countermajoritarian branch of government. I don’t think they can realistically do that without the balancing tests made here.
I’m not saying all the decisions here look constitutionally valid (Lochner wasn’t protecting anybody, it was about some capitalist judges who really love capitalism, and Korematsu was horrifying- but that’s not about the fact that they did a balancing test, but that they messed it up).
But I am saying these authors seem naive in spite of their credentials (you think human beings can be objective on political issues? I’d rather take my chances with someone who admits they can’t be than on someone who pretends they are) and just too, too happy to trust majority will. (Hate to make ad hominem attacks but they’re also two straight, rich old white guys- it’s just common sense for them to believe in the majority will, since it’s probably always going to favour their interests).
Also, it’s funny they seem to lionize Scalia for being so “judicially restrained.” Fact check: if you count up the decisions made over the duration of the last complete chief justice tenure (Rehnquist), Ruth Bader Ginsburg (she who is so often accused of “judicial activism” by the way) struck down the fewest laws. Followed by Breyer (also liberal, also accused of judicial activism- by name, in this book), followed by Rehnquist himself (conservative, and made some calls I don’t like, but overall good judge and great chief justice). In contrast, Scalia-the-originalist and Thomas-the-textualist were among the most judicially activist-y, surpassed only by O’Connor (conservative) and Kennedy (weirdo- but most people call him moderate).
I’m juuuuuuust saying. Glass fucking houses.
Scalia, if he were still kicking, would heart this book. Textualism! Originalism! Fossilization! Single-minded libertarian streaks! Pretending to be judicially restrained when, actually, you’re not! Yes, my friends. Dolly Parton has Dollywood, and this book is the paper version of Scalialand. I did not enjoy my stay.
For one thing, it pretends that textualism is the only valid constitutional theory. It’s one of many. It’s fine to write a book from one theory’s point of view, but don’t hold yourself out as the definitive truth.
For example, it loves the Heller/McDonald cases (striking down gun laws federally and state-wise, respectively) because the second amendment says a right to bear arms, damn it. Right, okay, but this is post-hoc justifying, because everyone knows that right is the right to have a militia, not to run around a city with a handgun in your pocket. Handguns weren’t even a thing in the 18th century. You couldn’t reasonably have “concealed carry” of any firearms (muskets don’t fit in your pocket, fun fact). The world has changed in the past 200+ years, and a lot of language in the Constitution reflects prescient awareness of that, and (personally I think) a lot of the language is intentionally worded so as to be abstract enough to stretch to fit new situations as they come up.
Note, that is my personal view. See how I don’t say that it’s the definitive answer, just a theory? This is my bone with this book.
Now, look. I appreciate, really and truly I do, the problem with giving this much power to an unelected group of nine elitist judges. It’s a scary thought to have those 9 monarch-like human beings nomming on their power looming over you, when it’s supposed to be a democratic system of government. But, you know, the thing is... these judges are nominated by someone we did elect democratically (...even when that someone is a box of tools). If you really <3 democracy so much that you worry about SCOTUS being a threat to it… if you love it that much, you should trust it. Because SCOTUS judges are practically elected by proxy. It’s not that different from the electoral college system (voting for electors who will vote for the person we want to be president). If there’s a vacancy on the court, you bet a lot of people will be thinking about that when they decide who to vote for. So if you trust democracy, you should probably also trust SCOTUS. (Yeah, I get that they have life tenure so it’s not a perfect thing, but you should invest some trust in them).
I say that even now, when we have someone like Trump on the presidency and potentially some upcoming SCOTUS vacancies. I don’t have to like it, but the country picked Trump, and so the country picked his SCOTUS nominations, too. We made our bed, and there’s no sense acting like we didn’t.
I don’t love the Heller/McDonald decision for political reasons (I fucking LOVE gun control) and I think it’s funny they call it a Constitution-based decision when, like ALL the cases they denounce in this book, it’s a balancing test between individual and governmental interests- but I don’t think that Heller/McDonald, in doing that balancing test, was overreaching. I don’t like it, but I think it’s a valid exercise of SCOTUS’s power.
I suppose the issue is that the decisions in this book are largely made to protect minorities from the majority will. This is... kind of... the point of SCOTUS- they’re the countermajoritarian branch of government. I don’t think they can realistically do that without the balancing tests made here.
I’m not saying all the decisions here look constitutionally valid (Lochner wasn’t protecting anybody, it was about some capitalist judges who really love capitalism, and Korematsu was horrifying- but that’s not about the fact that they did a balancing test, but that they messed it up).
But I am saying these authors seem naive in spite of their credentials (you think human beings can be objective on political issues? I’d rather take my chances with someone who admits they can’t be than on someone who pretends they are) and just too, too happy to trust majority will. (Hate to make ad hominem attacks but they’re also two straight, rich old white guys- it’s just common sense for them to believe in the majority will, since it’s probably always going to favour their interests).
Also, it’s funny they seem to lionize Scalia for being so “judicially restrained.” Fact check: if you count up the decisions made over the duration of the last complete chief justice tenure (Rehnquist), Ruth Bader Ginsburg (she who is so often accused of “judicial activism” by the way) struck down the fewest laws. Followed by Breyer (also liberal, also accused of judicial activism- by name, in this book), followed by Rehnquist himself (conservative, and made some calls I don’t like, but overall good judge and great chief justice). In contrast, Scalia-the-originalist and Thomas-the-textualist were among the most judicially activist-y, surpassed only by O’Connor (conservative) and Kennedy (weirdo- but most people call him moderate).
I’m juuuuuuust saying. Glass fucking houses.
July 25, 2011
This book is a good complement to Randy Barnett's _Restoring the Lost Constitution_. _The Dirty Dozen_ looks at twelve bad Supreme Court decisions that have effectively erased some of the explicit constitutional limits on the federal government and reduced individual freedom. The preface by Richard Epstein expresses a few minor disagreements about some of the cases chosen, and the end of the book explains why Roe v. Wade and Bush v. Gore didn't make the cut. Those that did include Korematsu v. United States (1944), which said that the U.S. program of internment for Japanese Americans was constitutional, Kelo v. City of New London (2005), which said that governments can seize private property in order to give it to other private hands, Home Building & Loan Association v. Blaisdell (1934), which said that the government can unilaterally void parts of private contracts despite Article I Section 10's explicit language to the contrary, and Bennis v. Michigan (1996), which said that government can use civil forfeiture to take property without compensation that is involved in a crime even if the owner of the property has no involvement in that crime.
August 21, 2008
Interesting. VERY libertarian. This book challenged my ability to defend my constitutional views more than it challenged my legal reasoning.
March 18, 2012
Libertarians Levy and Mellor survey the Supreme Court's cases from approximately the last eighty years to pick out the dozen cases having perhaps the worst effects. I note libertarian particularly, because these "dirty dozen" would in no way be a consensus pick among any well-informed cross-section of society. You should be aware what you're getting here. If you're looking for something to agree with instinctively, wholeheartedly, and unreservedly, this is probably not the book you're looking for.
If you're well-read in Supreme Court jurisprudence, their selections will mostly be familiar. If you're less well-read, some of their selections will be familiar, but many will be obscure. The cases aren't the ones that engender vocal complaint (although a few are in the list: Korematsu v. United States as the decision enabling internment of Japanese-Americans during World War II, Kelo v. City of New London as the recent decision permitting eminent-domain transfer of property from one private party to another for no public use, and Grutter v. Bollinger as the slightly-less-recent decision permitting use of race in the public college admissions process); notably, you won't find Roe v. Wade or Bush v. Gore on the list, although the authors go out of their way to explain why each was not included.
The authors' criticisms range from the reasonably predictable and somewhat commonplace to the utterly esoteric. Resort to the non-delegation doctrine as a legal principle, for example, is highly unusual these days, to say the least. The authors instead concern themselves with what is "right", regardless whether it is or isn't popular (as you might expect of a book published by the Cato Institute). This book is a voice in the wilderness, not a populist polemic. One advantage of this tactic is that, because you won't approach these cases with quite the same tired arguments you'll hear day in and day out among pundits and the chattering classes, it's easier to seriously approach the arguments and consider them on their merits: not simply on who wins or loses the political battle of the day. One disadvantage is that it's not always easy to slog through the sometimes-arcane legal principles expounded.
Because this book doesn't hew to any particular party line, pretty much everyone is likely to find something to like in the criticisms presented here. Liberals will enjoy the civil-liberties criticisms; conservatives will enjoy the expansion-of-government criticisms. Yet beyond that, each will find criticisms that are discomforting or even disagreeable. The way the authors associate Korematsu with the modern-day case of Jose Padilla will leave many conservatives feeling uneasy. Similarly, the textual redefinition involved in Kelo may give liberals some pause where the textual redefinition in Wickard v. Filburn did not. Perhaps this unease will give both sorts of readers pause to more deeply consider their existing assumptions and convictions. This is a strength of the book: it makes you think about the reasons why you believe what you believe.
But it's only a strength if you're willing to approach each criticism with an open mind. And that's a broader note to make on the book: if you approach this planning to believe it's an ideological screed, you'll get much less from it than if you approach it assuming each argument is honestly made.
If you're well-read in Supreme Court jurisprudence, their selections will mostly be familiar. If you're less well-read, some of their selections will be familiar, but many will be obscure. The cases aren't the ones that engender vocal complaint (although a few are in the list: Korematsu v. United States as the decision enabling internment of Japanese-Americans during World War II, Kelo v. City of New London as the recent decision permitting eminent-domain transfer of property from one private party to another for no public use, and Grutter v. Bollinger as the slightly-less-recent decision permitting use of race in the public college admissions process); notably, you won't find Roe v. Wade or Bush v. Gore on the list, although the authors go out of their way to explain why each was not included.
The authors' criticisms range from the reasonably predictable and somewhat commonplace to the utterly esoteric. Resort to the non-delegation doctrine as a legal principle, for example, is highly unusual these days, to say the least. The authors instead concern themselves with what is "right", regardless whether it is or isn't popular (as you might expect of a book published by the Cato Institute). This book is a voice in the wilderness, not a populist polemic. One advantage of this tactic is that, because you won't approach these cases with quite the same tired arguments you'll hear day in and day out among pundits and the chattering classes, it's easier to seriously approach the arguments and consider them on their merits: not simply on who wins or loses the political battle of the day. One disadvantage is that it's not always easy to slog through the sometimes-arcane legal principles expounded.
Because this book doesn't hew to any particular party line, pretty much everyone is likely to find something to like in the criticisms presented here. Liberals will enjoy the civil-liberties criticisms; conservatives will enjoy the expansion-of-government criticisms. Yet beyond that, each will find criticisms that are discomforting or even disagreeable. The way the authors associate Korematsu with the modern-day case of Jose Padilla will leave many conservatives feeling uneasy. Similarly, the textual redefinition involved in Kelo may give liberals some pause where the textual redefinition in Wickard v. Filburn did not. Perhaps this unease will give both sorts of readers pause to more deeply consider their existing assumptions and convictions. This is a strength of the book: it makes you think about the reasons why you believe what you believe.
But it's only a strength if you're willing to approach each criticism with an open mind. And that's a broader note to make on the book: if you approach this planning to believe it's an ideological screed, you'll get much less from it than if you approach it assuming each argument is honestly made.
July 2, 2017
I plan on going to law school after I graduate college, so I've spent a lot of time reading books that pertain to law in some way, shape, or form (most recently I've read A Civil Action, which was spectacular). I'm moderately more liberal, so quite a few of the books I've been reading deal with topics that are typically deemed "liberal" concerns (such as the environmental and public health concerns of corporate activities, and how they detrimentally affect the economically disadvantaged in A Civil Action). But I do respect many more conservative viewpoints on certain matters, and I'm going to need to understand conservative positions on a multitude of topics, so I figured The Dirty Dozen would be a fine place to start.
I was wrong.
The Dirty Dozen is mainly hardline Libertarian fear mongering about the dangers of big government. It asserts itself as a study that reveals how select Supreme Court decisions after the 1930s have led to rapid expansion of federal power and trampled over individual rights, but it turns out that's just a fancy way of disguising that this book is really about how government regulations protecting economically disadvantaged citizens from things such as predatory lenders, from insurance companies that try to screw over their policy holders through overly long legal contracts filled with legal jargon incomprehensible to the average citizen, public programs protecting impoverished working class people, etc, are all just there to trample over the rights of those poor, defenseless, corporate shareholding billionaires.
Chapter 3, for example, uses hurricanes Andrew, Rita, and Katrina, as examples for how "government interference" led to the bankruptcy of a dozen different insurance companies because the government stepped in and retroactively altered insurance contracts and prevented them from backing out of covering the billions of dollars of damages the economically disadvantaged families living in the areas most affected by these disasters endured, with fairly heinous quotes such as "Corporate shareholders and employees are second -class citizens whose rights can be sacrificed to protect homeowners and farmers," and describing these corporate billionaires as "parties whose rights have been extinguished."
...
So you're telling me, that the billionaires who entered into a contract with their policy holders, agreeing to cover the financial damages, should disaster strike the homeowners whom they insure, are essentially "second hand citizens" because they went bankrupt after the government stepped in, and forced them to cover the damages they agreed to cover? You're kidding me, right? With the numerous occasions under which the courts have sided with corporate shareholders over the working class citizens whom they exploit (A Civil Action being just one example), you take it as a sign of a rampant, out of control government, on one of the few occasions when the courts sided with the working class, and a few billionaires went bankrupt as a result? You honestly believe that?
But it really isn't all bad, because this coauthor set of libertarian lawyers don't just have corporate shareholder's interest ms at heart, as chapter 4 expresses concern for the smaller businesses that went under trying to comply with regulations imposed by the EPA, which goes to demonstrate how obviously imperfect the system is, but their solution seems to lie within abolishing federal power and judicial power over fixing it. I get some smaller businesses have suffered when trying to comply with EPA regulations, and that needs to be addressed, but you can't isolate these failings from the successes, like the recently successful project to reintroduce wolves to Yellowstone, and the massive beneficial impacts that's had on the environment, the successful prosecution of corporations that have dumped toxic chemicals into water sources and poisoned families as a result, the decontamination of various water sources that had been poisoned with lead and mercury and arsenic, the exponentially improved air quality of major American cities such as LA from what it was in the 1970s, and literally thousands of other examples of success that have resulted in a better quality of life for millions of people, in order to justify repealing governmental regulation.
(Part 3)
The policies year writers are advocating for comes dangerously close to creating an oligarchical society, as much as they outwardly champion the idea of "individual freedom." Even by omitting the successes of the system they're writing against, they still fail to make a substantial case for how much of what they're writing about adversely affects anybody outside of the billionaire class. Chapters 6, 7, 8, 9, 10 and 12 are the only topics discussed that actually affect common people.
Chapter 6 deals with gun control, which presents a very solid case for deregulation of gun control, but it's impossible to detangle what a tricky issue gun control is in a single chapter of a book, which results in an oversimplification of the issue through which they treat ending violent crime as a simple matter of deregulating guns. Even though I consider myself more liberal, I'm still pro-gun ownership, but I'm not going to fault the government for trying to grapple with the issue of keeping guns out of the hands of dangerous criminals, while allowing common citizens to remain armed. Violent crime and gun regulation is far more complicated than they make it seem.
Chapter 7 deals with how rights to privacy get trampled on in favor of "national security," chapter 8 deals with the most egregious flaw in our justice system (outside of police brutality), which is asset forfeiture without due process, and chapters 9 and 10 deal with eminent domain and how the government stiff arms people out of their property through regulation. All of these chapters are extremely solid and are definitely worth checking out.
But chapter 12, on the other hand, deals with how programs such as affirmative action violates equal protection under the laws of the United States, which I find to be the most ridiculous argument this book tries to make. This review is long enough as it is, and I don't want to end up writing an entire book out of how promoting diversity through programs such as affirmative action actually benefits our economy considerably, and helps to alleviate the systemic poverty that is still being inflicted on people of color to this very day, but even though o disagreed with the majority of this book's thesis, none of the other chapters actually made me angry the way this final chapter did, and I'm not up to discussing in depth just how fundamentally broken many of these points are right now.
Another thing I find bizarre in this book, is how the authors occasionally site The Federalist Papers when they're making their case for smaller government, when in one of the very first papers, Alexander Hamilton literally says that many will argue for a weak federal government under the pretense of "individual liberties," but that is a fallacious argument. I don't know why Libertarians continue to keep using quotes from the Federalist Papers, Alexander Hamilton was the opposite of a Libertarian.
I really do sound much more negative than I really am about The Dirty Dozen. While overall, I do disagree with a majority of the points presented in it, there are still lots of fairly compelling examples and arguments that are worth reading, even though I completely disagree with their solutions to the issues they present.
I was wrong.
The Dirty Dozen is mainly hardline Libertarian fear mongering about the dangers of big government. It asserts itself as a study that reveals how select Supreme Court decisions after the 1930s have led to rapid expansion of federal power and trampled over individual rights, but it turns out that's just a fancy way of disguising that this book is really about how government regulations protecting economically disadvantaged citizens from things such as predatory lenders, from insurance companies that try to screw over their policy holders through overly long legal contracts filled with legal jargon incomprehensible to the average citizen, public programs protecting impoverished working class people, etc, are all just there to trample over the rights of those poor, defenseless, corporate shareholding billionaires.
Chapter 3, for example, uses hurricanes Andrew, Rita, and Katrina, as examples for how "government interference" led to the bankruptcy of a dozen different insurance companies because the government stepped in and retroactively altered insurance contracts and prevented them from backing out of covering the billions of dollars of damages the economically disadvantaged families living in the areas most affected by these disasters endured, with fairly heinous quotes such as "Corporate shareholders and employees are second -class citizens whose rights can be sacrificed to protect homeowners and farmers," and describing these corporate billionaires as "parties whose rights have been extinguished."
...
So you're telling me, that the billionaires who entered into a contract with their policy holders, agreeing to cover the financial damages, should disaster strike the homeowners whom they insure, are essentially "second hand citizens" because they went bankrupt after the government stepped in, and forced them to cover the damages they agreed to cover? You're kidding me, right? With the numerous occasions under which the courts have sided with corporate shareholders over the working class citizens whom they exploit (A Civil Action being just one example), you take it as a sign of a rampant, out of control government, on one of the few occasions when the courts sided with the working class, and a few billionaires went bankrupt as a result? You honestly believe that?
But it really isn't all bad, because this coauthor set of libertarian lawyers don't just have corporate shareholder's interest ms at heart, as chapter 4 expresses concern for the smaller businesses that went under trying to comply with regulations imposed by the EPA, which goes to demonstrate how obviously imperfect the system is, but their solution seems to lie within abolishing federal power and judicial power over fixing it. I get some smaller businesses have suffered when trying to comply with EPA regulations, and that needs to be addressed, but you can't isolate these failings from the successes, like the recently successful project to reintroduce wolves to Yellowstone, and the massive beneficial impacts that's had on the environment, the successful prosecution of corporations that have dumped toxic chemicals into water sources and poisoned families as a result, the decontamination of various water sources that had been poisoned with lead and mercury and arsenic, the exponentially improved air quality of major American cities such as LA from what it was in the 1970s, and literally thousands of other examples of success that have resulted in a better quality of life for millions of people, in order to justify repealing governmental regulation.
(Part 3)
The policies year writers are advocating for comes dangerously close to creating an oligarchical society, as much as they outwardly champion the idea of "individual freedom." Even by omitting the successes of the system they're writing against, they still fail to make a substantial case for how much of what they're writing about adversely affects anybody outside of the billionaire class. Chapters 6, 7, 8, 9, 10 and 12 are the only topics discussed that actually affect common people.
Chapter 6 deals with gun control, which presents a very solid case for deregulation of gun control, but it's impossible to detangle what a tricky issue gun control is in a single chapter of a book, which results in an oversimplification of the issue through which they treat ending violent crime as a simple matter of deregulating guns. Even though I consider myself more liberal, I'm still pro-gun ownership, but I'm not going to fault the government for trying to grapple with the issue of keeping guns out of the hands of dangerous criminals, while allowing common citizens to remain armed. Violent crime and gun regulation is far more complicated than they make it seem.
Chapter 7 deals with how rights to privacy get trampled on in favor of "national security," chapter 8 deals with the most egregious flaw in our justice system (outside of police brutality), which is asset forfeiture without due process, and chapters 9 and 10 deal with eminent domain and how the government stiff arms people out of their property through regulation. All of these chapters are extremely solid and are definitely worth checking out.
But chapter 12, on the other hand, deals with how programs such as affirmative action violates equal protection under the laws of the United States, which I find to be the most ridiculous argument this book tries to make. This review is long enough as it is, and I don't want to end up writing an entire book out of how promoting diversity through programs such as affirmative action actually benefits our economy considerably, and helps to alleviate the systemic poverty that is still being inflicted on people of color to this very day, but even though o disagreed with the majority of this book's thesis, none of the other chapters actually made me angry the way this final chapter did, and I'm not up to discussing in depth just how fundamentally broken many of these points are right now.
Another thing I find bizarre in this book, is how the authors occasionally site The Federalist Papers when they're making their case for smaller government, when in one of the very first papers, Alexander Hamilton literally says that many will argue for a weak federal government under the pretense of "individual liberties," but that is a fallacious argument. I don't know why Libertarians continue to keep using quotes from the Federalist Papers, Alexander Hamilton was the opposite of a Libertarian.
I really do sound much more negative than I really am about The Dirty Dozen. While overall, I do disagree with a majority of the points presented in it, there are still lots of fairly compelling examples and arguments that are worth reading, even though I completely disagree with their solutions to the issues they present.
July 16, 2012
If you value the constitution on which our country was founded this book will break your heart. The branch of our government that James Madison dubbed the "least dangerous" has become a threat to our freedoms as American citizens. An absolute must-read that thoroughly and intelligently explains its subject without resorting to text-book style lecturing.
August 4, 2008
This is one of the best books on understanding the current interpretation of the Constitution. It details where the court has gone astray in protecting liberties and upholding the Constitution.
February 1, 2016
Biased attack on New Deal court decisions 26good for debate use
February 16, 2016
1CSo many bad cases; so little space to examine them. 1D 13 1CThe Dirty Dozen, 1D page 5
In September 2008, Katie Couric interviewed both major parties 19 vice-presidential candidates on television and asked each of them the same question: Which Supreme Court rulings do you disagree with? Republican Sarah Palin was embarrassed to admit that aside from Roe v. Wade, she could not think of any, while Democrat Joe Biden was more voluble, coming up with several, including a ruling that struck down a measure of his own that would have stretched the meaning of the Constitution 19s already far-stretched 1Ccommerce clause. 1D This led one wag to observe that 1CSarah Palin has no idea about the Constitution at all, and Joe Biden has no idea about the Constitution that isn 19t scary. 1D
18The Dirty Dozen, 1D which is subtitled 1CHow Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 1D is the book that should have been on Palin 19s summer reading list in 2008. Written by attorneys Robert A. Levy and William Mellor, it was published in early 2008 14plenty of time for the then-governor of Alaska to have bopped down to the Barnes & Noble in Anchorage and picked up this relatively accessible book. (It was also available online from Amazon.com, of course.)
While the former governor might not have agreed with every opinion expressed, this book is a good starting place for anyone to think about what makes a bad legal opinion. The authors 19 explicitly lay out their criteria. (And they only deal with cases since 1933 because, while there were plenty of bad rulings before that, many of them no longer have any force of law; for example, Dred Scott v. Sandford (1857), which upheld slavery, 1Cwas superseded by the Fourteenth Amendment (1868). 1D) They openly take a libertarian-conservative approach in analyzing what humorist P.J. O 19Rourke says on this book 19s flyleaf are 1Cthe twelve worst Supreme Court rulings so far. 1D Actually, the book discusses more than twelve high court rulings; there are at least twenty-one decisions given special attention by Levy and Mellor. There is also a 1CTable of Cases 1D that lists some 100 rulings that are at least mentioned in the book. Further, in his preface, distinguished law professor Richard A. Epstein gives his opinions about the authors 19 choices and disagrees in two or three instances, substituting some decisions that he would put on his own list of worst Supreme Court rulings.
The book is neatly arranged so that you can see from the table of contents what the authors are getting at. Part One is entitled 1CExpanding Government, 1D and Part Two is called 1CEroding Freedom. 1D The chapter headings give further telling clues. In Part One we have 1CPromoting the General Welfare 1D referring to Helvering v. Davis (1937) where the Supreme Court not only expanded the meaning of that phrase in the Constitution but essentially said that Congress can pass any law it wants and the Supreme Court won 19t necessarily scrutinize it to see whether or not it 19s Constitutional. (Isn 19t that their number one job?) It should be noted that conservative jurists have often taken that very approach, trusting the legislature or even un-elected administrators to know what they are doing when they make up laws and rules for which the Constitution has given them no authority. In one of the few cases where Justice Clarence Thomas disagreed with Justice Antonin Scalia 14United States v. Bajakajian (1998) 14the case turned on just such an issue. Scalia more or less argued that U.S. Customs is entitled to make whatever administrative rules they think are necessary, whereas Thomas countered that they are not entitled to make up rules that violate constitutional protections.
In almost every chapter, the authors list not only the case that made their Dirty Dozen list but also a similarly bad ruling that they award 1Cdishonorable mention. 1D For example, in chapter nine, they feature Kelo v. City of New London (2005), a case in which the high court ruled that a local government was within its rights to seize people 19s homes and then turn them over to private developers, but the authors also discuss another ruling in the same area of law (called 1Ceminent domain 1D), Berman v. Parker (1954), which they consider almost as bad.
So here are some of the case names along with their respective issues: The first three the authors call misinterpretations of Article I of the body of the Constitution. The rest are said to be violations of amendments to the Constitution, and I 19ll put each relevant amendment in brackets []. Helvering v. Davis (1937) expanded the meaning of 1Cgeneral welfare 1D to promote redistribution of wealth; Wickard v. Filburn (1942) expanded the meaning of 1Cinterstate commerce 1D to cover activities that are not interstate or commerce or even legal; Home Building & Loan Association v. Blaisdell (1934) not only interfered with private contracts, but it could be seen as the first in the series of steps leading ultimately to the recent mortgage meltdown and our current economic crisis; McConnell v. Federal Election Commission (2003) [First Amendment] eroded free speech by interfering with the right to support or criticize political candidates; United States v. Miller (1939) [Second Amendment] undermined the right to possess firearms; Korematsu v. United States (1944) [Fifth Amendment] upheld the arrest and detention of American citizens 1Cwithout charge indefinitely 1D; Thanks to Benis v. Michigan (1996) [Fifth and Fourteenth Amendments] your property can be confiscated and not recovered even if you are never charged with a crime; United States v. Carolene Products (1938) [Ninth Amendment] enshrined the idea that you can be engaged in a legal business selling goods at a fair price but your competitors can claim that you 19re engaging in unfair competition and the Supreme Court will back them up; Grutter v. Bollinger (2003) [Fourteenth Amendment] held that it is necessary to practice discrimination in order to end discrimination.
Included in the after matter are two postscripts discussing why Roe v. Wade (1973) and Bush v. Gore (2000) did not make the 1Cdirty dozen 1D cut. The reason has to do with the authors 19 criteria for choosing their cases. To make the list, cases 1Cshould be defined in terms of their outcome, not merely bad legal reasoning. 1D 1COutcome 1D does not just mean that you don 19t like the result but that, for example, the ruling decided public policy in a way that would not have happened otherwise if the court had not stepped outside of its constitutional bounds. In Roe v. Wade, the authors conclude that most of the fifty state legislatures might well have reached a similar solution in handling the political-football issue of where life legally begins. The constitutional problem was that the legislatures and not the Supreme Court should make that kind of decision. So they left out Roe v. Wade not because they consider it a good decision but because it did not, in their view, change the fact that first-trimester abortions were becoming increasingly acceptable to the majority in many states. (Not exactly what Palin might like to hear, but the authors are lawyers, and lawyers parse things differently than soccer moms do.)
One point that jumped out at me as I read this book was how often a bad Supreme Court decision is based not only on erroneous legal reasoning but on a misapprehension of the basic facts of the case. For example, in the Carolene Products case, the opinion of the Court wrongly regarded the defendant 19s product as bad for customers 19 health and that factual error influenced the Court 19s ruling against Carolene.
The authors are trying to reach the educated non-lawyer who is not necessarily familiar with the U.S. Constitution, so they include a copy of the Constitution, and each chapter begins with a relevant quote from that document, so that the reader will know what portion of the Constitution has been affected by the decision(s) about to be discussed. The Introduction also briefly outlines the cases and the issues they raise. This kind of redundancy should be welcome to the layman reader or the person who wants to refresh his or her memory, say, before an interview with Katie Couric.
In September 2008, Katie Couric interviewed both major parties 19 vice-presidential candidates on television and asked each of them the same question: Which Supreme Court rulings do you disagree with? Republican Sarah Palin was embarrassed to admit that aside from Roe v. Wade, she could not think of any, while Democrat Joe Biden was more voluble, coming up with several, including a ruling that struck down a measure of his own that would have stretched the meaning of the Constitution 19s already far-stretched 1Ccommerce clause. 1D This led one wag to observe that 1CSarah Palin has no idea about the Constitution at all, and Joe Biden has no idea about the Constitution that isn 19t scary. 1D
18The Dirty Dozen, 1D which is subtitled 1CHow Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 1D is the book that should have been on Palin 19s summer reading list in 2008. Written by attorneys Robert A. Levy and William Mellor, it was published in early 2008 14plenty of time for the then-governor of Alaska to have bopped down to the Barnes & Noble in Anchorage and picked up this relatively accessible book. (It was also available online from Amazon.com, of course.)
While the former governor might not have agreed with every opinion expressed, this book is a good starting place for anyone to think about what makes a bad legal opinion. The authors 19 explicitly lay out their criteria. (And they only deal with cases since 1933 because, while there were plenty of bad rulings before that, many of them no longer have any force of law; for example, Dred Scott v. Sandford (1857), which upheld slavery, 1Cwas superseded by the Fourteenth Amendment (1868). 1D) They openly take a libertarian-conservative approach in analyzing what humorist P.J. O 19Rourke says on this book 19s flyleaf are 1Cthe twelve worst Supreme Court rulings so far. 1D Actually, the book discusses more than twelve high court rulings; there are at least twenty-one decisions given special attention by Levy and Mellor. There is also a 1CTable of Cases 1D that lists some 100 rulings that are at least mentioned in the book. Further, in his preface, distinguished law professor Richard A. Epstein gives his opinions about the authors 19 choices and disagrees in two or three instances, substituting some decisions that he would put on his own list of worst Supreme Court rulings.
The book is neatly arranged so that you can see from the table of contents what the authors are getting at. Part One is entitled 1CExpanding Government, 1D and Part Two is called 1CEroding Freedom. 1D The chapter headings give further telling clues. In Part One we have 1CPromoting the General Welfare 1D referring to Helvering v. Davis (1937) where the Supreme Court not only expanded the meaning of that phrase in the Constitution but essentially said that Congress can pass any law it wants and the Supreme Court won 19t necessarily scrutinize it to see whether or not it 19s Constitutional. (Isn 19t that their number one job?) It should be noted that conservative jurists have often taken that very approach, trusting the legislature or even un-elected administrators to know what they are doing when they make up laws and rules for which the Constitution has given them no authority. In one of the few cases where Justice Clarence Thomas disagreed with Justice Antonin Scalia 14United States v. Bajakajian (1998) 14the case turned on just such an issue. Scalia more or less argued that U.S. Customs is entitled to make whatever administrative rules they think are necessary, whereas Thomas countered that they are not entitled to make up rules that violate constitutional protections.
In almost every chapter, the authors list not only the case that made their Dirty Dozen list but also a similarly bad ruling that they award 1Cdishonorable mention. 1D For example, in chapter nine, they feature Kelo v. City of New London (2005), a case in which the high court ruled that a local government was within its rights to seize people 19s homes and then turn them over to private developers, but the authors also discuss another ruling in the same area of law (called 1Ceminent domain 1D), Berman v. Parker (1954), which they consider almost as bad.
So here are some of the case names along with their respective issues: The first three the authors call misinterpretations of Article I of the body of the Constitution. The rest are said to be violations of amendments to the Constitution, and I 19ll put each relevant amendment in brackets []. Helvering v. Davis (1937) expanded the meaning of 1Cgeneral welfare 1D to promote redistribution of wealth; Wickard v. Filburn (1942) expanded the meaning of 1Cinterstate commerce 1D to cover activities that are not interstate or commerce or even legal; Home Building & Loan Association v. Blaisdell (1934) not only interfered with private contracts, but it could be seen as the first in the series of steps leading ultimately to the recent mortgage meltdown and our current economic crisis; McConnell v. Federal Election Commission (2003) [First Amendment] eroded free speech by interfering with the right to support or criticize political candidates; United States v. Miller (1939) [Second Amendment] undermined the right to possess firearms; Korematsu v. United States (1944) [Fifth Amendment] upheld the arrest and detention of American citizens 1Cwithout charge indefinitely 1D; Thanks to Benis v. Michigan (1996) [Fifth and Fourteenth Amendments] your property can be confiscated and not recovered even if you are never charged with a crime; United States v. Carolene Products (1938) [Ninth Amendment] enshrined the idea that you can be engaged in a legal business selling goods at a fair price but your competitors can claim that you 19re engaging in unfair competition and the Supreme Court will back them up; Grutter v. Bollinger (2003) [Fourteenth Amendment] held that it is necessary to practice discrimination in order to end discrimination.
Included in the after matter are two postscripts discussing why Roe v. Wade (1973) and Bush v. Gore (2000) did not make the 1Cdirty dozen 1D cut. The reason has to do with the authors 19 criteria for choosing their cases. To make the list, cases 1Cshould be defined in terms of their outcome, not merely bad legal reasoning. 1D 1COutcome 1D does not just mean that you don 19t like the result but that, for example, the ruling decided public policy in a way that would not have happened otherwise if the court had not stepped outside of its constitutional bounds. In Roe v. Wade, the authors conclude that most of the fifty state legislatures might well have reached a similar solution in handling the political-football issue of where life legally begins. The constitutional problem was that the legislatures and not the Supreme Court should make that kind of decision. So they left out Roe v. Wade not because they consider it a good decision but because it did not, in their view, change the fact that first-trimester abortions were becoming increasingly acceptable to the majority in many states. (Not exactly what Palin might like to hear, but the authors are lawyers, and lawyers parse things differently than soccer moms do.)
One point that jumped out at me as I read this book was how often a bad Supreme Court decision is based not only on erroneous legal reasoning but on a misapprehension of the basic facts of the case. For example, in the Carolene Products case, the opinion of the Court wrongly regarded the defendant 19s product as bad for customers 19 health and that factual error influenced the Court 19s ruling against Carolene.
The authors are trying to reach the educated non-lawyer who is not necessarily familiar with the U.S. Constitution, so they include a copy of the Constitution, and each chapter begins with a relevant quote from that document, so that the reader will know what portion of the Constitution has been affected by the decision(s) about to be discussed. The Introduction also briefly outlines the cases and the issues they raise. This kind of redundancy should be welcome to the layman reader or the person who wants to refresh his or her memory, say, before an interview with Katie Couric.
Read
May 9, 2021Well, this book helped me to understand how little I know about the Constitution, the Supreme Court, and our government. A libertarian look at 12 SC cases that reduced individual iberty and helped expand government.
The book hooked me in the very beginning, as the authors describe their view of the Constitution. Quite an eye opener. The idea of just how limited the Founders' desired the government to be is alien in this day and age.
The 12 cases are from 1933 or later, and are picked b/c they are wrong based on Constitution, and had large repercussions for future expansion of govt, which has a related effect in reducing individual liberty.
Each case is handled pretty well for laymen, such as myself, even if you are basically bored w/law and studying court cases, like me. Some cases the argument they make as to why the decision was wrong is pretty airtight, others, I'm not really sold, or am missing something. But that was maybe 2 or 3 of the 12. The majority make you want to know how these decisions are defended, especially against the Constitution.
The authors do a good job of pointing out some inconsistencies amongst conservative and liberal viewpoints, such as conservatives generally siding on states' rights, except for national security or criminal law, and liberals generally having no problem w/expansion of government (they point out the irony in the extreme distrust of Defense or Justice Depts, but liberals tend to trust govt to run other areas of our lives).
The Afterword talks about the idea of "living Constitution", and I have to agree w/the authors, that viewpoint is against Founders' ideas/purpose, and in essence, makes Constitution useless. There would be no need for the Amendment process is the Constitution was living and adaptable to modern times at any moment. No, the Amendment process is there for a reason (as well as specific powers enumerated and no "etc"), and is meant to be time consuming/difficut for a reason, to ensure govt doesn't get carried away. Oh, how far we've come.
Altho not one of the 12 Dirty Dozen, they do have an appendix on Roe v Wade (which they say wasn't a legal decision, however the end result would be similar if left up to the states to decide the abortion issue). They again point out some inconsistencies, in that conservatives tend to disagree w/Roe v Wade in that SC overrode states' rights, and liberals are happy they did. But in the Schiavo affair, the roles were switched, where the state of Florida allowed tubes removed, and conservatives wanted SC to overrule, and liberals were ok w/states' rights. Shows the importance of consistency, otherwise you're basically saying whatever I agree w/is legal, even if contradictory in different cases. Hypocrisy is annoying.
Even if you just read the Intro and Afterword, you learn a lot about Constitution and government (and get depressed in how unconstitutional this country is). But each case is very interesting too, and some of them we feel the effects (license for hair braiding in Miss was a great example of nonsense).
The authors point to the New Deal Era as the time when most of the individual rights were lessened and govt power expanded, due to crisis of Depression. I'm reminded of Rahm Emanuel's statement earlier this year, to the effect of, "never let a crisis go to waste".
The book hooked me in the very beginning, as the authors describe their view of the Constitution. Quite an eye opener. The idea of just how limited the Founders' desired the government to be is alien in this day and age.
The 12 cases are from 1933 or later, and are picked b/c they are wrong based on Constitution, and had large repercussions for future expansion of govt, which has a related effect in reducing individual liberty.
Each case is handled pretty well for laymen, such as myself, even if you are basically bored w/law and studying court cases, like me. Some cases the argument they make as to why the decision was wrong is pretty airtight, others, I'm not really sold, or am missing something. But that was maybe 2 or 3 of the 12. The majority make you want to know how these decisions are defended, especially against the Constitution.
The authors do a good job of pointing out some inconsistencies amongst conservative and liberal viewpoints, such as conservatives generally siding on states' rights, except for national security or criminal law, and liberals generally having no problem w/expansion of government (they point out the irony in the extreme distrust of Defense or Justice Depts, but liberals tend to trust govt to run other areas of our lives).
The Afterword talks about the idea of "living Constitution", and I have to agree w/the authors, that viewpoint is against Founders' ideas/purpose, and in essence, makes Constitution useless. There would be no need for the Amendment process is the Constitution was living and adaptable to modern times at any moment. No, the Amendment process is there for a reason (as well as specific powers enumerated and no "etc"), and is meant to be time consuming/difficut for a reason, to ensure govt doesn't get carried away. Oh, how far we've come.
Altho not one of the 12 Dirty Dozen, they do have an appendix on Roe v Wade (which they say wasn't a legal decision, however the end result would be similar if left up to the states to decide the abortion issue). They again point out some inconsistencies, in that conservatives tend to disagree w/Roe v Wade in that SC overrode states' rights, and liberals are happy they did. But in the Schiavo affair, the roles were switched, where the state of Florida allowed tubes removed, and conservatives wanted SC to overrule, and liberals were ok w/states' rights. Shows the importance of consistency, otherwise you're basically saying whatever I agree w/is legal, even if contradictory in different cases. Hypocrisy is annoying.
Even if you just read the Intro and Afterword, you learn a lot about Constitution and government (and get depressed in how unconstitutional this country is). But each case is very interesting too, and some of them we feel the effects (license for hair braiding in Miss was a great example of nonsense).
The authors point to the New Deal Era as the time when most of the individual rights were lessened and govt power expanded, due to crisis of Depression. I'm reminded of Rahm Emanuel's statement earlier this year, to the effect of, "never let a crisis go to waste".
November 25, 2023
Written by two constitutional lawyers, The Dirty Dozen is an ambitious book for readers with limited legal background. But it's worth the effort. Authors Levy and Mellor -- described by one reviewer as "the Hamilton and Madison of our age" -- analyze twelve Supreme Court decisions which, in their view, have significantly eroded Americans' personal liberties.
Each Supreme Court decision is analyzed from four perspectives: 1) What is the Constitutional issue? 2) What were the facts? 3) Where did the Court go wrong? 4) What are the implications? This logical structure used throughout the book helps the reader dissect and appreciate the complex issues.
Many readers, like me, won't agree with the authors on every case. Although I generally agreed with their assessments, I disagreed (as the authors warned many would) with the first case discussed, Helvering v. Davis (1937) which ruled on the constitutionality of President Roosevelt's new Social Security program. The authors assert, "Indeed, we will be arguing that programs such as Social Security, which collect money from some taxpayers and redistribute it to other taxpayers, are unconstitutional...Where in the Constitution is the federal government authorized to rob Peter in order to pay Paul?"
Substituting "tax" for "rob" in the question above, the answer is simple: Article I, Section 8, of the U.S. Constitution" "The Congress shall have the power to lay and collect Taxes...[to] provide for the common Defence and general welfare..." Since the adjective "general" is defined as "affecting or concerning all or most people, places, or things; widespread" there is no restriction that federal taxes collected must benefit only those from whom they are collected.
So, like federal taxes collected in 1811 to build The National Road used by some, but not all, taxpayers, Social Security unquestionably contributes to the General Welfare as required by the Constitution.
There are eleven more cases like Helvering v. Davis which will challenge readers. Agree, or disagree, you'll have a much better understanding of our Constitution after reading The Dirty Dozen.
Each Supreme Court decision is analyzed from four perspectives: 1) What is the Constitutional issue? 2) What were the facts? 3) Where did the Court go wrong? 4) What are the implications? This logical structure used throughout the book helps the reader dissect and appreciate the complex issues.
Many readers, like me, won't agree with the authors on every case. Although I generally agreed with their assessments, I disagreed (as the authors warned many would) with the first case discussed, Helvering v. Davis (1937) which ruled on the constitutionality of President Roosevelt's new Social Security program. The authors assert, "Indeed, we will be arguing that programs such as Social Security, which collect money from some taxpayers and redistribute it to other taxpayers, are unconstitutional...Where in the Constitution is the federal government authorized to rob Peter in order to pay Paul?"
Substituting "tax" for "rob" in the question above, the answer is simple: Article I, Section 8, of the U.S. Constitution" "The Congress shall have the power to lay and collect Taxes...[to] provide for the common Defence and general welfare..." Since the adjective "general" is defined as "affecting or concerning all or most people, places, or things; widespread" there is no restriction that federal taxes collected must benefit only those from whom they are collected.
So, like federal taxes collected in 1811 to build The National Road used by some, but not all, taxpayers, Social Security unquestionably contributes to the General Welfare as required by the Constitution.
There are eleven more cases like Helvering v. Davis which will challenge readers. Agree, or disagree, you'll have a much better understanding of our Constitution after reading The Dirty Dozen.
August 24, 2017
Not for the faint of heart (unless, I suppose, one is a big-government Progressive/cultural-marxist/social-democrat, and otherwise is in favor of monolithic, central-planning government).
A sad but indispensable book, for those who love individualism and liberty and want to understand the myriad of crossroads where SCOTUS blew-it and took us down the wrong path (translation: undermined either individual liberty, or Federalism, or states' rights (which was itself an integral aspect of the original system of Federalism).
Most of the reasons for the sell-out are political, in my opinion. And the mistakes usually flow from the 3 biggest loopholes in the Constitution: The Necessary & Proper Clause; The Commerce Clause; and The General Welfare Clause.
A sad but indispensable book, for those who love individualism and liberty and want to understand the myriad of crossroads where SCOTUS blew-it and took us down the wrong path (translation: undermined either individual liberty, or Federalism, or states' rights (which was itself an integral aspect of the original system of Federalism).
Most of the reasons for the sell-out are political, in my opinion. And the mistakes usually flow from the 3 biggest loopholes in the Constitution: The Necessary & Proper Clause; The Commerce Clause; and The General Welfare Clause.
September 12, 2017
An excellent look, for the layperson or attorney, about how we have lost much of the personal liberty that was so precious to our founders. Richard Epstein's intro is very informative as is his book along the same lines, How Progressives Rewrote the Constitution. Whether you are Progressive or Libertarian or somewhere in between, you need to understand how we got where we are and what it means for our future.
Want to read
April 8, 2023The erosion of freedom , radically improves the chance of Palestine existing as a state. But the blood from the deaths vallantly delivered on the war platter still stinks with the stench of truth. Everyone rapes. The Supreme Court in America is divided in administrations to secure a chance at unbalanced legislation to allow the thinkers to conclude and the doers to work. Society. That is what has to be preserved , protected and given the chance to be all you be for your individual armies.
February 25, 2020
A succinct, very well argued case for liberty and constitutionalism against irresponsible use of Supreme Court power. In my view a non-partisan argument to which conservatives & liberals should pay attention.
The erosion of economic and property rights in particular is a travesty and an abuse of power.
The erosion of economic and property rights in particular is a travesty and an abuse of power.
June 9, 2019
Voters should be required to read this book.
June 3, 2021
felt somewhat obsolete since at least 2 possibly up to 4 of these cases were overturned.
December 6, 2023
I love this book and it is one of the books that has profoundly altered my perspective on the US. It made me reevaluate truths and thoughts I believed as a kid and early in my adult life.
January 22, 2025
The book was an interesting one for me for a few reasons. Despite my efforts to learn about the US Constitution, I learned a lot more from reading the critiques within this book of US Supreme Court cases than from reading the Constitution. I also learned a lot about the contradictions and competing interpretations within the founding document. The book contained some chapters that were very easy to follow while others covered court cases that were far more technical than others. Lastly, the book seemed very biased, which I never particularly appreciate, but I managed to overlook it given what I learned about this more originialist interpretation of the Constitution. Albeit, the bias was not couched in any deceptive way--the book is clearly (it's right there in the subtitle of the book) divided into two parts, the erosion of freedoms and the expansion of government--inherently conservative and libertarian mindsets.
March 3, 2017
The Dirty Dozen:
How Twelve Supreme Court Case Expanded Government and Eroded Freedom
By Robert A. Levy and William Mellor
Start Date: 2010
End Date: 2010
Rating: Very Good
If you want to learn about how political ideology shapes our constitution and affects our everyday lives, this book is a well worth reading.
For over 200 years, the Constitution of the United States of America provided a legal framework for how our government is structured, how responsibilities are assigned, how power is apportioned, what rights are considered sacrosanct and how laws are created. During the ratification process, the constitution's writers battled over almost every word in an effort to do it right, and we know this because we have their arguments and intentions preserved in The Federalist Papers.
In the Dirty Dozen, the authors, Robert Levy and William Mellor argue that the Supreme court has strayed from the Constitution's original ideals and in the process has sent the country on not just an unintended course but on a course intentionally avoided by the framers.
The authors have chosen 12 Supreme court decisions to argue their case. By examining these twelve decisions, they touch on almost every core principle the constitution was designed to uphold. They examine the general welfare clause, the boundaries of eminent domaine, and the interstate commerce clause.
How Twelve Supreme Court Case Expanded Government and Eroded Freedom
By Robert A. Levy and William Mellor
Start Date: 2010
End Date: 2010
Rating: Very Good
If you want to learn about how political ideology shapes our constitution and affects our everyday lives, this book is a well worth reading.
For over 200 years, the Constitution of the United States of America provided a legal framework for how our government is structured, how responsibilities are assigned, how power is apportioned, what rights are considered sacrosanct and how laws are created. During the ratification process, the constitution's writers battled over almost every word in an effort to do it right, and we know this because we have their arguments and intentions preserved in The Federalist Papers.
In the Dirty Dozen, the authors, Robert Levy and William Mellor argue that the Supreme court has strayed from the Constitution's original ideals and in the process has sent the country on not just an unintended course but on a course intentionally avoided by the framers.
The authors have chosen 12 Supreme court decisions to argue their case. By examining these twelve decisions, they touch on almost every core principle the constitution was designed to uphold. They examine the general welfare clause, the boundaries of eminent domaine, and the interstate commerce clause.
Read
May 31, 2013Adam C. Zern shares his thoughts . . .
"In my ongoing quest to better understand the United States Constitution and American history, I have been spending a great deal of time reading books that deal with American history and/or the Constitution in some way. I have recently become very interested in America's judicial system, especially on a federal level. The Dirty Dozen is a libertarian commentary on the twelve worst, according to the opinion of the authors, supreme court decisions. The authors make their opinion and viewpoint on American constitutionalism very, very clear at the beginning of the book, which I appreciated. I was already aware of their ideological feelings when I bought the book, but I think it's good practice to do as the authors did and make sure the reader understands completely the source of much of their reasoning.
I'm prone to relate to and agree with much of libertarian thinking. I learned about The Dirty Dozen because I am a frequent visitor to cato.org and Robert Levy is the Cato Institute's Chairman. I chose to read The Dirty Dozen specifically because it was written by Libertarian thinkers (William Mellor is with the Institute for Justice). I wanted that type of a perspective on the Supreme Court cases they chose. The authors are not neophytes to the area of constitutional law and the Supreme Court. Their logic is reasonable, well-stated, and worth understanding for all concerned citizens from both sides of the ideological spectrum.
The book is perfectly readable. It only gets lost in the legal weeds several times, but even then you can find your way out if your patient and stretch your intellectual muscle. However, like Antonin Scalia's A Matter of Interpretation, which I also read recently, if you are not particularly interested in the Supreme Court or the significant decisions they have made, this book will be difficult to get through. In a sense, I feel like a topic such as the Supreme Court should be of some interest to everyone, but I know that's not the case. Read it if your interested, which you should be on some level; if not, it will be a slog."
http://thethousanderclub.blogspot.com/
"In my ongoing quest to better understand the United States Constitution and American history, I have been spending a great deal of time reading books that deal with American history and/or the Constitution in some way. I have recently become very interested in America's judicial system, especially on a federal level. The Dirty Dozen is a libertarian commentary on the twelve worst, according to the opinion of the authors, supreme court decisions. The authors make their opinion and viewpoint on American constitutionalism very, very clear at the beginning of the book, which I appreciated. I was already aware of their ideological feelings when I bought the book, but I think it's good practice to do as the authors did and make sure the reader understands completely the source of much of their reasoning.
I'm prone to relate to and agree with much of libertarian thinking. I learned about The Dirty Dozen because I am a frequent visitor to cato.org and Robert Levy is the Cato Institute's Chairman. I chose to read The Dirty Dozen specifically because it was written by Libertarian thinkers (William Mellor is with the Institute for Justice). I wanted that type of a perspective on the Supreme Court cases they chose. The authors are not neophytes to the area of constitutional law and the Supreme Court. Their logic is reasonable, well-stated, and worth understanding for all concerned citizens from both sides of the ideological spectrum.
The book is perfectly readable. It only gets lost in the legal weeds several times, but even then you can find your way out if your patient and stretch your intellectual muscle. However, like Antonin Scalia's A Matter of Interpretation, which I also read recently, if you are not particularly interested in the Supreme Court or the significant decisions they have made, this book will be difficult to get through. In a sense, I feel like a topic such as the Supreme Court should be of some interest to everyone, but I know that's not the case. Read it if your interested, which you should be on some level; if not, it will be a slog."
http://thethousanderclub.blogspot.com/
January 21, 2016
Interesting Quotes:
"[T]wo federal government agencies recently examined gun controls and found no statistically significant evidence to support their effectiveness. In 2004 the National Academy of Sciences reviewed 253 journal articles, 99 books, 43 government publications, a survey of 80 gun-control measures, and its own empirical work. The researchers could not identify a single gun-control regulation that reduced violent crime, suicide, or accidents. A year earlier the Centers for Disease Control and Prevention reported on an independent evaluation of firearms and ammunition bans, restrictions on acquisitions, waiting periods, registration and licensing, child access prevention laws, and zero tolerance laws. Conclusion: None of the laws had a meaningful impact on gun violence.
"Proponents of gun control are not persuaded by the evidence, nor are they persuaded by the text of the Second Amendment; the history, purpose, and structure of the Constitution; or the intent of the framers. The enactment of antigun regulations has become an article of faith in some cities and states. Regulations persist and even spread in the face of compelling legal and policy arguments for their demise."
-Robert A. Levy & William Mellor, the Dirty Dozen
"[C]onservatives--usually strong proponent's of states' rights, who vigorously argue that abortion rules should be decided state-by-state--pushed for federal preemption of state decisions in the Schiavo affair. And liberals--who express outrage when state sovereignty arguments are advanced by pro-lifers in the abortion battles--invoked identical arguments to support Ms. Schiavo's right to die. The Schiavo case--when does life end?--is the flip side of Roe v. Wade--when does life begin? Neither decision is the province of the federal judiciary. Judges have no special moral authority on such matters."
-Robert A. Levy & William Mellor, the Dirty Dozen
"[T]wo federal government agencies recently examined gun controls and found no statistically significant evidence to support their effectiveness. In 2004 the National Academy of Sciences reviewed 253 journal articles, 99 books, 43 government publications, a survey of 80 gun-control measures, and its own empirical work. The researchers could not identify a single gun-control regulation that reduced violent crime, suicide, or accidents. A year earlier the Centers for Disease Control and Prevention reported on an independent evaluation of firearms and ammunition bans, restrictions on acquisitions, waiting periods, registration and licensing, child access prevention laws, and zero tolerance laws. Conclusion: None of the laws had a meaningful impact on gun violence.
"Proponents of gun control are not persuaded by the evidence, nor are they persuaded by the text of the Second Amendment; the history, purpose, and structure of the Constitution; or the intent of the framers. The enactment of antigun regulations has become an article of faith in some cities and states. Regulations persist and even spread in the face of compelling legal and policy arguments for their demise."
-Robert A. Levy & William Mellor, the Dirty Dozen
"[C]onservatives--usually strong proponent's of states' rights, who vigorously argue that abortion rules should be decided state-by-state--pushed for federal preemption of state decisions in the Schiavo affair. And liberals--who express outrage when state sovereignty arguments are advanced by pro-lifers in the abortion battles--invoked identical arguments to support Ms. Schiavo's right to die. The Schiavo case--when does life end?--is the flip side of Roe v. Wade--when does life begin? Neither decision is the province of the federal judiciary. Judges have no special moral authority on such matters."
-Robert A. Levy & William Mellor, the Dirty Dozen
March 10, 2016
The book was clearly written with a libertarian viewpoint and as such, the opinions expressed may not be instinctively or unreservedly agreed to by everyone. That's okay though. It was fun to see the positions and then read the actual opinions (and dissents when available) as a side endeavor to complement this book. With that disclaimer out of the way, "The Dirty Dozen" takes selections of Supreme Court cases that the authors (and those they solicited for input) believe were the worst post 1930's decisions that defied the Constitution and eroded individual freedoms in the United States.
The book is definitely not a populist polemic nor is it intended to be so. The authors do well to avoid the same old arguments we hear from pundits and don't necessarily align with any one traditional political party. Those with more liberal viewpoints will enjoy the cases regarding civil-liberties while conservatives will enjoy the expansion of government criticisms. Some criticisms will leave both sides feeling uncomfortable, and they should. The association between Korematsu with the modern case of Jose Padilla will make traditional conservatives cringe. At the same time, the textual redefinition in Kelo may give liberals some pause.
The greatest strength of this book is the unease that is elicited should give readers from either side to take a moment to reflect upon their existing assumptions and convictions. There are certainly moments of "wow, I didn't know that" throughout and any reader will find themselves better off because of that.
If you approach this with the assumption that each argument is honestly made, you'll get much more out of it than trying to twist it to a particular ideology. At the very least, there was tremendous educational value from seeing the consequences that stem from the rulings of a handful of unelected individuals and the power the judicial branch of government truly wields.
The book is definitely not a populist polemic nor is it intended to be so. The authors do well to avoid the same old arguments we hear from pundits and don't necessarily align with any one traditional political party. Those with more liberal viewpoints will enjoy the cases regarding civil-liberties while conservatives will enjoy the expansion of government criticisms. Some criticisms will leave both sides feeling uncomfortable, and they should. The association between Korematsu with the modern case of Jose Padilla will make traditional conservatives cringe. At the same time, the textual redefinition in Kelo may give liberals some pause.
The greatest strength of this book is the unease that is elicited should give readers from either side to take a moment to reflect upon their existing assumptions and convictions. There are certainly moments of "wow, I didn't know that" throughout and any reader will find themselves better off because of that.
If you approach this with the assumption that each argument is honestly made, you'll get much more out of it than trying to twist it to a particular ideology. At the very least, there was tremendous educational value from seeing the consequences that stem from the rulings of a handful of unelected individuals and the power the judicial branch of government truly wields.
May 17, 2017
The Dirty Dozen is a must read!
Before reading the Dirty Dozen I never gave much thought on the power the 12 Justices have on our freedom. Their opinions are the final say on what should be and what is right or what is wrong in spite of the Constitution that is suppose to govern our society. I am now convinced they should have term limits.
The Dirty Dozen will show you how these 12 Justices misinterpret or choose to ignore the Constitution and rule based on personal opinion and personal experiences.
The Dirty Dozen will show how these 12 Justices are a dangerous lot and should be held accountable for their decisions that seeks to run rampant on society as a whole.
The 12 Justices are appointed by fallible presidents to serve as Gods over society, until their deaths. The Dirty Dozen let us know that it’s time for society to wake up and demand that these wanna be God’s be de-throne!
The Dirty Dozen demonstrates the importance of requiring mandatory retirement at age 65 at any sign of dementia or any other mental health issues with people who hold our society in the palms of their hands.
The Dirty Dozen demonstrates the importance of Justices having a strong background in the Constitution and Constitution Law.
The Dirty Dozen is not an easy read but it’s an important one.
Before reading the Dirty Dozen I never gave much thought on the power the 12 Justices have on our freedom. Their opinions are the final say on what should be and what is right or what is wrong in spite of the Constitution that is suppose to govern our society. I am now convinced they should have term limits.
The Dirty Dozen will show you how these 12 Justices misinterpret or choose to ignore the Constitution and rule based on personal opinion and personal experiences.
The Dirty Dozen will show how these 12 Justices are a dangerous lot and should be held accountable for their decisions that seeks to run rampant on society as a whole.
The 12 Justices are appointed by fallible presidents to serve as Gods over society, until their deaths. The Dirty Dozen let us know that it’s time for society to wake up and demand that these wanna be God’s be de-throne!
The Dirty Dozen demonstrates the importance of requiring mandatory retirement at age 65 at any sign of dementia or any other mental health issues with people who hold our society in the palms of their hands.
The Dirty Dozen demonstrates the importance of Justices having a strong background in the Constitution and Constitution Law.
The Dirty Dozen is not an easy read but it’s an important one.
May 30, 2017
There are few things I find more frustrating than a book, or other publication, that has an important and credible thesis but botches it up with poor writing and misstatements of fact. After the first chapter of this book, I had very high hopes for it.
It was downhill all the way after that. At the outset, the book serves the very important purpose of addressing Alexander Hamilton's role in undermining the freedoms guaranteed by the Constitution, especially that of self-government.
I find it irksome, however, when scholars addressing a topic as important as this one resort to cheap gimmicks to achieve emotional manipulation. For example, Chapter 11 is an attack on the Carolene Products decision and opinion. It's captioned "Earning an Honest Living." Throughout the chapter, the refer to the decision as one denying a man "the right to earn an honest living." This is the worst sort of begging the question. The question the Court ruled on was whether he was in fact earning an honest living or whether Congress had the power to make it dishonest. Maybe the Court got it wrong, but you can't measure the decision objectively if you begin with the proposition that the defendant's conduct was honest, ergo legal.
It was downhill all the way after that. At the outset, the book serves the very important purpose of addressing Alexander Hamilton's role in undermining the freedoms guaranteed by the Constitution, especially that of self-government.
I find it irksome, however, when scholars addressing a topic as important as this one resort to cheap gimmicks to achieve emotional manipulation. For example, Chapter 11 is an attack on the Carolene Products decision and opinion. It's captioned "Earning an Honest Living." Throughout the chapter, the refer to the decision as one denying a man "the right to earn an honest living." This is the worst sort of begging the question. The question the Court ruled on was whether he was in fact earning an honest living or whether Congress had the power to make it dishonest. Maybe the Court got it wrong, but you can't measure the decision objectively if you begin with the proposition that the defendant's conduct was honest, ergo legal.
January 14, 2019
A brief note on The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.
I really had high expectations for this book, written as it was by a dream team of Cato (Robert A. Levy) and Institute for Justice (Wiliam H. Mellor) authors. Add in a forward by Richard A. Epstein, and this book should be great.
The basic format is to take 12 issues, and for each one to examine the relevant Supreme Court decisions, asking for each one:
--What is the Constitutional issue?
--What were the facts?
--Where did the Court go wrong?
--What are the implications?
The general theme is to show how things went off the rails, how a particular Supreme Court decision, as the title suggests, “radically expanded government” or “eroded freedom.”
The book is quite readable, and will be approachable by anyone with basic knowledge of American government and our constitutional order.
Read more of my review here: https://www.whynotlibertarianism.com/...
I really had high expectations for this book, written as it was by a dream team of Cato (Robert A. Levy) and Institute for Justice (Wiliam H. Mellor) authors. Add in a forward by Richard A. Epstein, and this book should be great.
The basic format is to take 12 issues, and for each one to examine the relevant Supreme Court decisions, asking for each one:
--What is the Constitutional issue?
--What were the facts?
--Where did the Court go wrong?
--What are the implications?
The general theme is to show how things went off the rails, how a particular Supreme Court decision, as the title suggests, “radically expanded government” or “eroded freedom.”
The book is quite readable, and will be approachable by anyone with basic knowledge of American government and our constitutional order.
Read more of my review here: https://www.whynotlibertarianism.com/...
January 26, 2011
The Founding Fathers set out three separate but equal branches of the government so that they could each keep the others in check. Unfortunately, as this book lays out, that has not been the case. These eleven cases (individual right to gun ownership was finally resolved with the Heller case) shows how the US Supreme Court has repeatedly handed more and more power to government at the cost of individual rights and liberties. Anyone interested in a historical perspective on how our country has gotten to where it is today needs to read this book.
February 23, 2009
I love learning about the supreme court, but this one was hard to get through. On the plus side it gave me insight into a lot of cases I had never even heard of..(aka everything except brown vs. board). The downside...everyone made comments on the title. I guess it was some western or gang movie???
July 20, 2012
Many cases I believe were decided wrongly.
Wickard v. Filburn: The biggest overreach. A farmer grows over his limit of wheat, this wheat is for personal consumption and feed for animals. This was not part of interstate commerce.
Home Loan v Blaisdell: If the court is to decide based on what the Constitution says, they failed in this case.
It is a great book.
Wickard v. Filburn: The biggest overreach. A farmer grows over his limit of wheat, this wheat is for personal consumption and feed for animals. This was not part of interstate commerce.
Home Loan v Blaisdell: If the court is to decide based on what the Constitution says, they failed in this case.
It is a great book.
August 1, 2008
Great book!
This book examines 12 Supreme Court cases and how each of the cases did not side with 'the people'.
Basically the Court didn't follow the Constitution.
Much of our bloated system is to be thanked to some of these cases.
This book examines 12 Supreme Court cases and how each of the cases did not side with 'the people'.
Basically the Court didn't follow the Constitution.
Much of our bloated system is to be thanked to some of these cases.
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