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Constitutional education, history, commentary, reform, compliance, and interpretation.

2013/07/16

Ratchet of rot

With few exceptions, bad Supreme Court precedents seem to move government in only one direction — toward greater power over people — despite the lack of authority for that in the Constitution as originally meant and understood. The Founders warned us of the dangers of creeping tyranny and usurpation from a failure of the people to be vigilant and diligent in their duty to supervise their public servants.

There is no better line of precedents to study to understand this process than those concerning the Commerce and Necessary and Proper clauses. They go back all the way to McCulloch v. Maryland in 1819, pivot on Wickard v. Filburn in 1942, and continue through this day. The main ones are gathered into a spreadsheet, Supreme Court decisions on the Commerce and Necessary and Proper clauses. It contains links to each case, indicated by red buttons, our assessments of the merits of the decisions and opinions, and brief comments on what is right or wrong with each. There are 44 decisions in the spreadsheet.

Some of this has been discussed in other articles, listed at the end of this article.

The texts of the opinions are instructive, but for full understanding it would help to have the original briefs in the cases, including those filed in the lower courts. We are working on getting those and will put them online when we do. In the meantime, one can discern some of what happened to produce the result.

Not all of these decisions were wrong. We include some that were right, usually earlier in our history, most of which were eventually overturned or restricted by later wrong court decisions.

The pattern is clear: In each such case there were strong political pressures to decide in favor of more government power, and weaker pressure against it. The Court yielded to the stronger pressure, and rationalized its decision in the ways it wrote its majority opinion. In some cases there were dissenting opinions that have more merit.

The process can be likened to a ratchet that only allows movement in one direction, or to a barrel of apples that are susceptible to rot. The only way to keep all the apples in the barrel from rotting is to remove the rotten ones faster than the rot spreads. Beyond a certain point that effort is futile, and the only solution is to throw out all the apples and sterilize the barrel, and at that point there may not be enough good apples to replace them.

This ratcheting up of power has incurred some political pushback, some of which managed to get correct decisions recognizing rights against the exercise of government powers. Some of the best decisions on rights emerged in that way. But those cases should not have been necessary if government officials and their patrons had not exceeded their constitutional authority in the first place.

Most federal criminal statutes are now based on this line of precedents. Appeals to the Tenth Amendment are futile when officials have the support of court precedents that support everything they want to do as a way to manage things that "have a substantial effect on interstate commerce". That position was reached step by step, each based on the ones before, that gradually moved beyond any reasonable interpretation of the words in the Constitution as originally understood, using the doctrine of stare decisis, discussed in an article below.

At this point the precedents are so entrenched that there is no serious hope of rolling them back through litigation. The only realistic alternative, as difficult as it might be, are constitutional amendments, and those amendments need to be worded to specifically overturn each of the precedents in the chain. Broad, general provisions won't do. They will have to be almost as specific as the court opinions are, and drafting such amendments is not a job for amateurs.

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