THE DIRTY DOZEN

Two conservative lawyers register their outrage at the Supreme Court’s “back door” expansion of government and erosion of civil rights.

Cato Institute scholar Levy and Institute for Justice president (and former Reagan counsel) Mellor unabashedly assert that their interpretation of the Constitution is “committed to the values of individual liberty, private property, and free markets.” The dozen cases they examine, in their view, betrayed the principles of the Founding Fathers and vastly enlarged federal power over the course of the 20th century, specifically from the New Deal onward. The book is organized thematically, with four cases grouped under “Expanding Government” and eight under “Eroding Freedom.” For each, the authors outline the facts, then offer their explanation of where the courts went wrong and what the implications are. Helvering v. Davis (1937) upheld the legality of the Social Security Act by embracing the “general welfare” clause in the Constitution; the authors call this an authorization to “rob Peter in order to pay Paul.” They view Wickard v. Filburn (1942) as a pernicious expansion of the Constitution’s Interstate Commerce Clause. Such cases as Whitman v. American Trucking Associations, Inc. (2001), they contend, have fostered the concentration of power in the hands of unelected administrative agencies. The authors deplore the expansive view of eminent domain taken in Kelo v. City of New London (2005), seeing its roots in earlier decisions supporting urban renewal. They scornfully critique the court’s upholding of affirmative action in higher education in Grutter v. Bollinger (2003), and they also blast the justices for affirming the legality of interning Japanese-Americans during World War II in Korematsu v. United States (1944), a clear violation of civil rights. In every instance, they advocate a narrow view of constitutional restraints, as opposed to a “living Constitution” flexible to changing modern needs.

Grating at times, but these sternly libertarian arguments keep the constitutional dialogue lively and accessible.