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The Supreme Court’s Attacks on Freedom, Part 2

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The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom
by Robert A. Levy and William Mellor (Sentinel, 2008); 299 pages.

Bennis v. Michigan (1996)

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

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

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

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

United States v. Carolene Products (1938)

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

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

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

Kelo v. City of New London (2005)

The Fifth Amendment states that private property may be taken by government only for public use, and then only if just compensation is paid to the owner. That language, allowing the camel of statist greed to get its nose under the private-property tent, was never very clear, and over the years, what was intended as a bulwark against the abuse of eminent domain has eroded to almost nothing. We have the Supreme Court to thank for that.

In Kelo, the Court might have repaired the defenses but instead weakened them. The City of New London, Connecticut, wanted to seize a lot of riverfront property so that a private development with offices, a hotel, shops, and upscale condos could go in. It was a classic case of government officials drooling for increased tax revenue and taking land away from homeowners who paid relatively little in taxes so that businesses that would pay much more in taxes could have it instead. Suzette Kelo complained that the taking was unconstitutional because it was not for a public use. Unfortunately, a majority of the justices disagreed, holding that the taking was permissible because it was supposed to have a public purpose.

Justice John Paul Stevens declared that “economic development” was a key government function and thus if some people had to give up their property for the supposed “greater good” of the community, the Fifth Amendment did not stand in the way. New London therefore could take Kelo’s home for its “revitalization” project (which, incidentally, is languishing). Even Justice Sandra Day O’Connor, usually one to defer to the supposed expertise of government planners, couldn’t go along, writing, “Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with a factory.”

Kelo means that so long as they follow certain formalities, politicians can take any property they want. The Founders certainly did not intend government to have such power, but the Court is more concerned with the illusory benefits of government coercion than with the rights of individual property owners. 

Penn Central v. New York (1978)

Penn Central is another property-rights case, but involving a “regulatory taking” rather than eminent domain. Governments can and often do regulate a property in such a way as to greatly lower its value — sometimes to virtually nothing. When it does so, must it compensate the owner? How far can government go before it has gone “too far” and must pay?

Following a merger in 1968 with the New York Central Railroad, Penn Central became the owner of Grand Central Terminal in New York City. The company wanted to construct an office building over the terminal. Another 50-story structure in New York: What could be the problem with that? New York City’s Landmarks Preservation Law, that’s what. A commission had been given the task of identifying buildings that were “landmarks,” and once a building was so designated, the owners could not alter it in any way without the approval of the commission. Penn Central’s plans for the new structure were submitted to the commission, but it rejected them, costing the company around $150 million in annual revenues. It sued.

When the case reached the Supreme Court, the justices had to decide whether New York had to compensate the company if it enforced its “landmark” regulation. Justice William Brennan’s majority opinion ruled in favor of the city. Mellor and Levy comment,

Brennan’s characterization makes compensation depend on the elusive notion of what is just and fair. But the language of the Fifth Amendment presupposes that compensation is required unless the government can demonstrate otherwise.

Worse still, Brennan’s opinion pivoted on the idea that in cases of this sort, the focus should be on the value that still remains after the regulation rather than on the value that has been lost.

As a result of Penn Central, governments around the nation have been given almost unfettered discretion to regulate away the value of private property. One favored technique is to impose moratoria on permission to develop land where one “temporary” restriction follows another and the owner never gets to build. 

Grutter v. Bollinger (2003)

Should governmental institutions be allowed to establish classes of citizens and treat some differently than others? For instance, under the “Jim Crow” laws, governments in the South used to require that whites and blacks be treated differently in many respects. Those laws were declared invalid under the Fourteenth Amendment’s Equal Protection Clause years ago, but what if governments choose to adopt “affirmative action” programs that set different admission standards for applicants to state universities depending on their race? Is it acceptable to replace the “bad” discrimination of Jim Crow with the “good” discrimination of programs that aim to increase “diversity”?

That was the issue in two cases involving the University of Michigan. Gratz v. Bollinger involved the admissions standards for undergraduates and Grutter v. Bollinger involved the admission standards used by the university’s law school. Both gave preferences based on the race of the applicant (for blacks, Hispanics, and American Indians), but the undergraduate system was very mechanical, automatically assigning a certain number of points simply on the basis of ethnicity. The law school’s system, however, was designed to look more “holistic” — that is, its preferences were adroitly masked by professed interest in vague qualities such as “leadership.”

The Supreme Court ruled that the undergraduate admission policy was unconstitutional, since it focused too much on race, while the law school’s policy was permissible. The Court uncritically accepted the law school’s assertion that it needed a “diverse” student body in order to reap the alleged educational benefits of having differing views expressed in class. Whereas the Court had traditionally required “strict scrutiny” of any law that classified people by race, in Grutter it didn’t bother with any scrutiny at all, merely taking the university’s word that racial preferences to achieve “diversity” were good.

This decision has the potential for weakening constitutional rights in an array of settings. For example, freedom of speech may be undermined. What if, the authors write, “a university determines that some purported educational benefit might be derived from its suppression?” The Court has already undermined the First Amendment with the notion that the “compelling governmental interest” in “fair” elections trumps free speech and now we have the “compelling governmental interest” in diversity on the loose, threatening other rights.

There you have them — the dirty dozen: Twelve cases (now only eleven, but there are many contenders for inclusion; my own favorite is Jones & Laughlin Steel v. NLRB, the 1937 case that okayed the horribly authoritarian National Labor Relations Act) that have done tremendous damage to our freedom by expanding the power of government.

At the next confirmation hearing for a Supreme Court justice, I hope to see senators thumbing through The Dirty Dozen hunting for tough questions to ask the nominee. There is an abundance of material in it to help sort the libertarian, pro-individual-rights wheat from the statist, pro-government chaff. And if you are one who wants to understand how so much of our liberty has been whittled away, this book goes a long way toward answering that question.

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    George C. Leef is the research director of the John W. Pope Center for Higher Education Policy in Raleigh, North Carolina. He was previously the president of Patrick Henry Associates, East Lansing, Michigan, an adjunct professor of law and economics, Northwood University, and a scholar with the Mackinac Center for Public Policy.