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Overturning Supreme Court Decisions
Last week I was reading some of the twitter outrage over judicial appointments, and how the Trump Administration would change the course of American Jurisprudence for a generation — even if he can be limited to one term. Naturally, the focus of these freakouts was Roe v. Wade. But I started to think, if I had the power to overturn Supreme Court decisions, I honestly dont think I would start with Roe. There are many others that need to be done away with that have a far larger impact on day to day lives.
This is my list, in random order:
Kelo v. City of New London: Permits the abuse of eminent domain for connected developer cronies of city hall.
Katz v. US: On the reasonable expectation of privacy. A terrible standard. Anyone who has ever dated knows there is wide variation on what a “reasonable expectation” is. A person’s rights should not depend on their reasonable expectations.
Harlow v. Fitzgerald: Qualified immunity of public officials. No.
Chevron v. NRDC: “Administrative deference” allows agencies to interpret statutes. Essentially allows bureaucrats to re-write the statutes that should have otherwise constrained their activities — creating the administrative state.
There are probably four or five more that I would like to overturn before Roe. What would be your list?
Published in Law
Marbury v. Madison, in which the Supremes took upon themselves the right, not specified in our Constitution, to overturn laws written by the peoples’ representatives.
Well, it’s a good thing that somebody did it.
This from Zero Hedge:
Breyer asked, if a state needs revenue, could it force someone to forfeit their Bugatti, Mercedes, or Ferrari for speeding? Even if they were going just 5 miles per hour over the speed limit?
And the utterly appalling answer from the Indiana Solicitor General was, yes.
That’s right… the official government position is that they can steal any amount of your property in “connection” with any crime whatsoever, no matter how trivial the crime may be… even exceeding the speed limit by 5 miles per hour.
***
How different is this from Chavez’s notorious catch phrase: “Exprópiese!” (Expropriate it!)
Here’s a modest proposal. Asserts that Trump is playing his political enemies’ game, which is a trap. He doesn’t like being a chump, but that’s the outcome of the current situation. Or… he could learn from Republican Party history:
Not gonna happen, though.
Lincoln had an impeachment-proof Congress since his opponents lost many supporters through secession. Today the snakes are still in the House (and Senate).
A worthy outcome, and I am no fan of abortion, or its infamous court ruling that enshrined it into our penumbras. But, I think if one is a hard nosed politician about it, having 50 statewide fights about it might not be the best thing politically. What if you have seriously underestimated peoples desire for it? Right now abortion isn’t really under threat legislatively because of the Supreme Court rulings. But if it were maybe more pro-choicers would be galvanized politically by it. So this might be a perfect example of be careful what you wish for.
NFIB v. Sebelius
A slim majority of the Court voted to uphold the individual mandate, while also concluding that the Medicaid expansion was unconstitutional. Chief Justice John Roberts wrote on behalf of the majority, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined the opinion.
In deciding the fate of the ACA, the majority first concluded that the individual mandate was not a valid exercise of Congress’s power under the Commerce Clause or the Necessary and Proper Clause. With regard to the Commerce Clause, Chief Justice Roberts emphasized that the Constitution grants Congress the power to “regulate Commerce,” which implies the existence of commercial activity to be regulated. “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce,” he wrote.
Taken from The Constitutional Law Reporter
https://constitutionallawreporter.com/2015/10/20/nfib-v-sebelius-aca-survives-first-constitutional-challenge/
My humble suggestion is to start here, then work in reverse chronological order through the SCOTUS decision travesties. Rather than start at Marbury v Madison (the foundation), let’s begin with the more recent excrement troweled upon our jurisprudential edifice. Perhaps there would be a chance of repealing Flemming v. Nestor – the US Government Ponzi Scheme aka Social Security.
I would like to see Helvering v. Davis overturned, and thus the 10th Amendment enforced.
From Wikepedia: Helvering v. Davis, 301 U.S. 619 (1937),[1] was a decision by the United States Supreme Court, which held that Social Security was constitutionally permissible as an exercise of the federal power to spend for the general welfare, and did not contravene the 10th Amendment. The Court’s 7–2 decision defended the constitutionality of the Social Security Act of 1935, requiring only that welfare spending be for the common benefit as distinguished from some mere local purpose.
What? How is that a good thing?
If an entity has the right to overturn, or change, the meaning of laws made my the people’s representatives, then the people have no control. We are no longer citizen’s, we are subjects. If the laws are bad, and thus result in rulings we don’t like, this puts pressure on the elected law makers to fix the problem.
If the majority can do whatever it wants, why even bother with a Constitution that limits the power of government?
This is an interesting theoretical exercise. Which of these desired outcomes have any realistic chance of happening in the next 20 years? My view is the ones mentioned in the OP do have a chance; most of the rest have zero chance, including most of mine.
I’m afraid I have to disagree. State intervention to manipulate money supply and interest rates, in order to try to maintain a constant “general price level” (however that is defined) is neither desirable nor achievable. I believe that the free-market economists have debunked this idea*.
But I would be interested in your, or other people’s, criticism of their arguments which claim to disprove your theory. I never took economics, and just have an amateur’s interest in it.
One problem with your claim is that relative prices affect the stability of the real economy. The rate of change of the general price level tells you nothing whatsoever about the relative prices of long-term and short-term production goods, and whether these ratios are sustainable (accurately reflective of consumer preferences and leading to economic stability) or not.
For instance, if the inflation rate is zero, it could be because long-term goods are overpriced relative to short-term, correctly priced, or underpriced.
*For example, Friedrich Hayek (in “Prices and Production”, for example), Fritz Matchlup’s “Professor Knight and the Period of Production,” and George Selgin’s “A Monetary Policy Primer”
Alternatively, I’d like to have Marbury expanded so that governors are the final arbiter in deciding what constitutes an infringement of the 9th and 10th amendments.
A lot of really good ideas here. My answer is, “All of the above.”
I believe that your assumption that the Constitution gives Congress the power to regulate the money supply is incorrect. I believe that the Constitution absolutely forbids Congress the power to regulate the money supply, by (a) not explicitly granting it and (b) by the enumerated powers clause.
The Constitution gives the power only to coin money, regulate the value thereof, and of foreign Coin, and fix the standard of weights and measures.
In fact, the power to mint and fix the value (weight of silver and gold) of coins is essentially a specific case of the power to fix the standard of weights and measures.
Yes, you’re correct, its in Article 1, section 8, enumerated powers of congress. This is also quoted by gold bugs that the constitution limit of only gold and silver can be money.
I believe that they are mistaken.
In fact when the Constitution was passed, free human beings–acting through free markets– had long ago selected silver by weight (the “Thaler” or “dollar”) and gold by weight as the two most common monetary units (“money”).
(Coins of trusted provenance (the money referred to in the Constitution) were just a practical means of exchanging weights of silver and gold without weighing against a standard weight. No different than if there were in circulation pieces of trusted provenance that weighed “one pound”, or had a length of “one inch”.)
The Constitution gave Congress neither the power to force people use either silver or gold by weight for money, nor to forbid them using something else if they so chose. It only sought to impose a common convention for commerce across the States to allow trusted commerce and adjudication of contracts and other aspects of law to be done efficiently.
Those who think otherwise may not understand that the new government and its written Constitution were established with a specific purpose in mind: to establish a republican form of government. That is, a government of the people by those same people, and for those same people. Not by, nor for, a self-selected, self-perpetuating ruling elite.
For them, the idea that the new government of a newly free people (let alone the limited government of the confederation of sovereign States) would be allowed to tell its masters that they
would have been anathema.
In other words, what these “gold bugs” are saying the government should be allowed to do was even worse tyranny than that of the inherited monarchy they’d just overthrown.
Any currency manipulation that deliberately inflicts inflation such that a two years’ salary investment (say $10,000 in 1960) with fifty year’s interest is worth almost nothing upon retirement is really wrong and wrong-headed.
That’s no way to run a country or allow people to save for retirement. Why would anyone do this, except to keep people in the government system; or to keep people investing in bank-sponsored and run retirement accounts, and to force the middle-class into mandatory minimum government retirement such as social security.
Well, George Washington (whom I otherwise idolize) made sure that whisky couldn’t be used for currency.
I suggest that you carefully reconsider what you are advocating.
This could literally end up in riots and violence if Trump essentially declares “I am the law” which is implicit in placing himself above the law.
I pray that if Trump is facing impeachment and removal, that he accede to constitutional order, and follow Nixon’s example.
Refusing to recognize the Rule of Law would not only destroy the Republican Party, it would threaten our constitutional system.
What is suggested in the quoted document is as serious as a heart attack, and would lead to the same result.
What about the Republican Party “brand.” Doesn’t anybody care about that anymore?
Trump disobeying the Courts would destroy not only the Republican Party’s brand, it would destroy the party itself.
The Democrat party didn’t get destroyed when Obama disobeyed the courts. Nor when Hillary Clinton disobeyed the courts about retention of e-mail records. So one never knows.
Excuse me, specifically, what direct order did Obama and/or Clinton disobey? I am not talking about a law violated by Obama and/or Clinton. I am asking about a direct refusal to honor a Court order, such as Andrew Jackson’s escerable behavior.
The information seems to have rotted away from the Internet, but I’m referring to Hillary’s direct defiance of Judge Royce Lamberth’s order on e-mail retention late during her first administration.
For Obama there is stuff like this: https://www.washingtontimes.com/news/2015/jun/29/three-year-amnesties-not-fully-rescinded/
I believe that Carol Browner was the dry run for the practice back in the last days of the Clinton Administration. Now its just part of the everyday Democrat playbook.
I think you are mistaken.
Washington enforced a whiskey excise tax. There was never any law or executive action against using whiskey as money. The rebellion was against the tax.
The tax was to stop them from using whisky as barter.
Might harm, but wouldn’t destroy.
Where did you hear that? That’s a completely new one on me. In all my reading about the Whiskey Rebellion, that never came up.
The tax was primarily for revenue.