The Voodoo That I'd Undo

Amidst the once-and-future firestorm surrounding the expected overturning of Roe v Wade, with pro-choice advocates screaming "Stare Decisis" at the top of their lungs, pro-lifers offering their arguments supporting the presumed Dodd decision, and Constitutionalists on both sides of the abortion issue applauding the return of what should always have been a legislative matter to Congress and the States, I am inclined to ponder other Supreme Court decisions that deserve similar defenestration. While I’m not a lawyer, I do have enough reading ability to sort some of the liberty-related issues and problems in these decisions.

I offer a half-dozen that should get a giant, red OVERTURNED! stamp across their pages:

1. The Slaughter-House Cases (1873), which neutered the 14th Amendment's incorporation of the Bill of Rights at the state level. The details of the case are secondary to the broader outcome. The "Black Codes" written in some Southern states to circumvent the 13th Amendment were allowed to stand by this extreme narrowing of 14A, among countless other non-protections of our rights against state-level infringements. In its wake, we have had to suffer a long, sporadic, case-by-case imposition of individual rights protections at the state level, rather than an implementation of its original intent. More here.

2. Wickard v Filburn (1942), which flipped the Interstate Commerce Clause (ICC) on its head by asserting that just about any economic activity had an effect on interstate commerce and therefore could be regulated by the federal government. Roscoe Filburn, an Ohio farmer, grew wheat to feed his own livestock. At the time, there was law that limited the amount of land farmers could dedicate to wheat production. This was intended to prop up wheat prices by limiting supply. Filburn argued that he wasn't selling the wheat, so it wasn't "commerce," let alone "interstate commerce," but the Department of Agriculture argued that, because he grew wheat instead of buying it, he was affecting the global wheat market and therefore the ICC could be used coercively. The Court agreed, and the ICC, which was intended to keep states from engaging in tariff wars with each other, instead became the justification for countless, often picayune or blatantly biased, federal interventions in all things economic.

3. Nebbia v New York (1934), which allowed the State to regulate milk prices, and by extension, granted the government almost unbounded power to regulate private businesses, and is emblematic of New Deal excess. It created the "rational basis" criterion for judging laws, wherein "a State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose." In other words, if the government is creative enough in cobbling together a "public welfare" rationalization, it can intervene in just about any economic activity.

4. Smith v. Maryland (1979), which obviates our Fourth Amendment privacy rights the moment we involve a third party. If you use a search engine, or even type a URL into a web browser, the government needs no warrant to demand that information from your ISP. This guts the intent of 4A, and in an age where life revolves around interconnectivity, makes a mockery of government limitations on accessing our "persons, houses, papers, and effects."

5. Bennis v Michigan (1996), which allowed the State to confiscate improperly used property, even if the owner didn't know about that use. Civil asset forfeiture is a scourge on our society (and especially on those of lesser means), with the government taking our stuff without due process and under the flimsiest reasons, and this ruling eliminated the "innocent owner defense."

6. Kelo v City of New London (2005), which justified eminent domain taking of property for economic benefit rather than "public use." Because New London expected to extract more real estate taxes from a big company's industrialization of a residential neighborhood, the Court ruled that this counted as "public use," expanding the limit of eminent domain takings beyond anything compatible with a free, rights-based society. Eminent domain is intended to keep one person from holding up a public work such as a roadway, not to help fill the tax coffers.

Dishonorable Mention goes to Helvering v. Davis (1937), which held that the Social Security program and associated taxation was Constitutionally permissible under the General Welfare clause. In allowing this, the Court basically told Congress that it can do anything it wants, as long as it’s for ‘common benefit’ instead of local purpose.

Behold, the history of federal government spending as a percentage of GDP.

Note that, apart from wartime spikes, Federal spending was essentially flat for 140 years, and has ramped up drastically since FDR and the New Deal. Today, we face the grim reality that we may not see a balanced budget any time in the foreseeable future. While I don’t intend to suggest that Helvering was the “gateway” the growth of government (the New Deal is chock full of such, with Wickard and Nebbia granting vast power to the Feds), it is one of the way points in the vast change in the government’s size, scope, and intrusiveness.

I separated Helvering from the “undo” list because, at this point, no matter how unconstitutional we might consider it, the proper remedy for amending the underfunded and unsustainable Ponzi scheme that is Social Security must emerge from Congress.

There are more I’d overturn, and an Internet search will offer additions (or alternatives, if you want to prioritize differently), but I'd say scrubbing this half dozen from the books would do wonders for restoring liberty and re-limiting government to the bounds it was supposed to have in the first place.

It's worth revisiting some of the more notorious rulings that have been overturned, just to affirm that Stare Decisis is not an ironclad deference to past decisions, but rather a principle that fosters continuity and consistency but allows for error correction where warranted:

• Plessy v Ferguson (1896), which upheld racial segregation, was overturned by Brown v. Board of Education (1954).

• Korematsu v United States (1844), which allowed the internment of American citizens of Japanese descent, was overturned by Trump v Hawaii (2018).

• Bowers v Hardwick (1986), which ruled that the Constitution did not protect the right of gay adults to engage in private, consensual sex, was overturned by Lawrence v Texas (2003).

• Schenck v. United States (1919), which imposed limits on political speech (in this case, handing out flyers urging resistance to being drafted during WWI), was partially overturned by Brandenburg v Ohio (1969), which limited restrictions on free speech to that which was likely to incite 'imminent lawless action.'

• Crooker v California (1958) and Cicenia v Lagay (1958), wherein it was ruled that a defendant did not have a Constitutionally protected right to counsel during questioning or before trial, were overturned by Escobedo v Illinois (1964) and the famous Miranda v Arizona (1966).

That some of these stood for decades is tragic, but it does affirm that longevity should not be presumed a valid defense. Other “landmark” decisions have been overturned. Given that justices are human, and that encroachment of “prevailing attitudes” is not just a recent phenomenon, we shouldn’t be surprised at overturns.

The Court overturns past rulings more often than some may realize. It’s rare (less than 2% of cases have been overturned) but not unheard-of (a couple hundred out of 9,000, or on average one per year). Some rulings have been “mooted,” i.e. undone by legislative action or constitutional amendment. I'll close with two of the mooted biggies:

• Dred Scott v Sanford (1857), which ruled that slaves living in free states could never be US citizens, was overturned in 1868 via Constitutional Amendment.

• Buck v Bell (1927), which affirmed a Virginia law allowing for state-enforced sterilization, amidst the broader eugenics movement. In this case, Justice Oliver Wendell Holmes Jr. infamously asserted, "three generations of imbeciles are enough" (Holmes has had a hand in a surprisingly long list of bad Court decisions). The law was repealed in 1974, and the State apologized to its victims in 2002, but the ruling was never overturned.

This points out that the ultimate fate of abortion rights lies not with the Supreme Court, but with the People via their elected representatives. If Congress can reach a consensus that a sitting President will sign, that’ll become law. If a future Court issues a ruling one way or the other, the People can seek to write an Amendment to the Constitution that will override the Court. Otherwise, the various state laws, existing, conditional, or to-be-written, will govern.

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Yours in liberty,

Peter.