Constitutional Law

The Dirty Dozen's Dirty Secret: The Conservative Legal Movement's Legitimacy Crisis -- Part I

by David Barron, Professor of Law, Harvard University

Recently, I participated in a panel discussion, along with Doug Kendall of the Constitutional Accountability Center, on a new book — The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, written by Robert Levy and William Mellor. It was a lively and enjoyable event, sponsored by the Cato Institute and the American Constitution Society, and it offered a chance to reflect not only on this accessibly written book, but also on the current state of conservative/libertarian legal thought. And for me at least, it revealed that it’s in a state of real confusion.

For one thing, the book shows that — deny it as they might — the Constitution in Exile is no figment of the progressive imagination. It’s something that a good number of conservative and libertarian lawyers still yearn to restore. After all, number one on the Dirty Dozen’s hit list is Helvering v. Davis, decided in 1937. And why? Because it upheld Social Security on a broad theory of federal spending and taxing power.

Other cases are equally illuminating. Number 2 on the list? That would be Wickard v. Filburn (1942), which sinned by adopting an expansive view of the commerce power. Number 4? Whitman v. American Trucking Association (2001) for failing to follow Schecter Poultry (1935) in restoring the non-delegation doctrine — which had one good year in the midst of the New Deal. Number 11? United States v. Carolene Products (1938), with Nebbia v. New York (1935) getting a dishonorable mention. The error here? Refusing to follow Lochner in invalidating labor and welfare legislation.

In short, the crime of the Supreme Court since the 1930’s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up the New Deal. And that, of course, is the Constitution in Exile line pure and simple.

And lest one think this is the idiosyncratic product of these two authors own extreme constitutional vision, it’s worth noting that they came up with the list by soliciting the opinions of 74 “like-minded legal scholars” whom they promised anonymity. All but one of the top nine picks from the survey made it into the book (the one case left out, Roe v. Wade, is the subject of an odd discussion in an appendix at the end), and the other four cases on their list all received multiple votes from those surveyed. In other words, there’s clearly a lot of right-leaning legal scholars out there who instinctively think the Court’s most grievous error was not that it ushered in the so-called Rights Revolution of the 50’s and 60’s but that it refused to invalidate the New Deal in the 30’s and 40’s.

[The second part of this discussion will be published tomorrow.]

Full post as published by ACS Blog on August 11, 2008 (boomark / email).