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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
Here’s an interesting one from a woman whose granddaddy did make whisky.
She’s not a pro, but her family’s version sounds more old timey than Joan Baez’.
And to start forcing use of the new US currency.
The reason we have a trillion and a half dollars of student loan debt in this country, and support thousands of Antifa associate perfessers and “administrators,” is due to Griggs v Duke Power, where the Supremes outlawed aptitude tests or looking at high school transcripts in hiring due to disparate impact.
The blasting cap that set off the illegal alien explosion was not Reagan’s 1986 amnesty [although that was stupidity of the first order] but Plyler v Doe 1983, where a 5-4 Court ordered state and local governments to aid and abet illegal immigration.
@ontheleftcoast
From Zero Hedge, via The Daily Bell:
Hamilton, the first Secretary of Treasury, may have had other motives for setting the precedent of force which still lives on today.
… Hamilton was one of the leading banking figures of the time. He proposed a tax which would have two purposes. The tax would raise the revenue necessary to pay back the wealthy financiers of the Revolution. But the tax would also bring under the jurisdiction of the federal government a group of pioneers living in rural western Pennsylvania. The tax was to be levied on the production of whiskey, and not just at a commercial level. Everyone who made whiskey owed the tax. This would be the first federal tax on domestic goods.
This was a problem for the people of western Pennsylvania. Most people in this area used whiskey as a currency. Whatever surplus grain a family had would be converted into whiskey in order to preserve it… This made it an ideal currency. No need for banks, no need for paper money the worth of which can be manipulated. These people had tangible goods with intrinsic value absent of government mandate.
But Alexander Hamilton and the federal government insisted that the tax on whiskey be paid in coin.
For western Pennsylvanians, this amounted to an income tax. But even worse, now they had to find a way to convert their whiskey into coin. They had no use for coin since they used whiskey as a currency. But now the federal government would require them to use more time and effort just to pay the tax.
…Producers of whiskey were given a choice. They could pay a flat tax or pay a per gallon price. For commercial distillers who produced a lot of whiskey, the flat rate was cheaper than the per gallon rate. But for individuals, the per gallon rate was cheaper.
This was a political reward that Hamilton gave to commercial whiskey distillers in the area. They would now have the cheapest whiskey available since the flat tax worked out to a lower per gallon rate than home-distillers were forced to pay.
Hamilton did this to gain a foothold of support in the area (his enforcer was a large scale distiller) and to convert the economy of western Pennsylvania away from a whiskey-based currency. The sooner everyone was brought under the jurisdiction of the federal government, the sooner the government could raise money to pay for spending.
The tax destroyed the way of life for your average rural Pennsylvanian. First, they were singled out for a tax that most city dwellers would not be affected by. Next, they were forced to find a way to earn coin in order to pay the tax. Then, the tax made their whiskey more expensive compared to commercial distillers. This meant it was harder to sell, making it harder to convert the whiskey into coin to pay the tax.
Roe would be high on my list. Obergefell is at the top, as it is recent and would prevent too much damage from being done.
I agree with the OP about Chevron, and I agree with other comments about some rollback of the New Deal cases (like Parrish and Wickard).
Others:
Since you weren’t kind enough to provide a URL I googled for it. Here: https://www.zerohedge.com/news/2017-11-13/whiskey-rebellion-how-brand-new-america-tore-bill-rights.
It looks like (though is not absolutely clear) that the ZeroHedge author gets its information from William Hogeland’s book about the Whiskey Rebellion. I’m not sure if I have my own copy, but I read that book when it first came out. Very good. It also led me to some other reading about the Whiskey Rebellion.
I found it interesting that the grandfather of Hezekiah Wells, after whom Wells Hall on the Michigan State University campus is named, was a whiskey distiller west of Pittsburgh. Hezekiah Wells was instrumental in getting Michigan to support Abraham Lincoln’s presidency. I thought it would be a neat story if the family went from whiskey rebel to strong unionist in three generations. But, as far as I’ve been able to determine, Grandpa Wells was not one of the rebels. Maybe he was one of the distillers that Hamilton was trying to favor. But I don’t know that, either.
I once thought the Whiskey Rebellion would make the subject of some good bicycle rides. But although I venture into the hill country along the Ohio River once in a while, usually I’m more of a flatlander.
It looks like Hogeland has a new book out: Autumn of the Black Snake. I’m going to get that one right away, as the topic has been the subject of several Indiana and Ohio bicycle rides so far.
Interesting theory. Do you have any references?
In Ron Chernow’s bio of Hamilton, he is very clear that Hamilton pushed through the excise tax, which was the second-largest revenue source for the US Government, because he wanted more national government revenue, to pay for armed forces, armed vessels for tax collection, and government programs to “stimulate” the economy along the lines which he thought it ought to go. He knew that he had sucked his first target (customs) dry and he was desperate to find a new well.
It would hardly be necessary for Hamilton to drive out the use of whiskey as money, as it had no chance of becoming a full-fledged money (common medium of exchange). It would be on its way out, driven out by gold and silver like every other commodity money in the history of civilization.
Feldman mentions that it was sometimes used as money, but then so were beaver pelts and other commodities in the isolated Western frontier.
Feldman also mentions the motive of discouraging alcohol consumption, which Hamilton and Madison both mentioned as motives for supporting it.
From the opposite side, that of the pioneers, Feldman states that whiskey was popular as a consumer good, and that the tax was resented because of the very disproportionate burden it placed on the western distillers and consumers. No mention is made of the interference of the tax with whiskey’s use as money as a motive for the uprising.
This reminds me that Ron Formisano’s 2008 book on American Populist Movements also had a chapter on the Whiskey Rebellion. That book was good about placing it in the context of other populist movements of that and later times. And that reminds me that it was @jeromedanner who made me aware of Formisano’s work. He works at the same college where Formisano teaches, or something like that. It looks like it has been a year since Mr. Danner posted anything here. I wish he’d spend some time here again.
All I can say is that this is what I recall being taught in high school, and I’ve seen it discussed elsewhere since. It also explains why Hamilton, of all people, would be so adamant in advising Washington to act so aggressively. I’m not excusing Washington, it was his nature as well, as much as I admire him.
Sorry. I only had 500 words. I would have posted everything if I hadn’t thought it would be swamping the thread.
Personally I was more interested in the financial manipulations and extortions, but the treacherous and murderous federal campaign was pretty bad too.
@skyler,
Hamilton was very determined to take control of Washington’s policies, and to move Jefferson and Madison to the shadows. And very successful. He didn’t need any more motivation than getting as much money in government hands as he could, and being in charge of how every shilling was spent–he viewed himself as history’s chosen creator of the American mercantilist nation.
Washington had no grand scheme. He was a soldier and a farmer, a Cincinnatus. On economic policy, he did whatever Hamilton told him to do.
These things are certainly true of Hamilton:
I’ve not been able to find any references on the Interwebs that argue for or against the account you give. Perhaps @thereticulator will get hold of the Hogeland book, and will shed light on it. (I would buy it but it’s not available electronically.)
There are frequent vague references on the web, also in Noah Feldman’s bio of Madison, to the occurrence of the use of whiskey as money, but nothing of any use.
The ZeroHedge article lacks credibility on the subject–no references really, and the author demonstrated a basic misunderstanding of the concept of money. In fact, all of the relevant history sections I’ve re-read today (two bio’s of Madison and one of Hamilton) suffered from the same defect: they were written by historians who had no understanding of economics, and little interest.
I have checked Rothbard’s “A History of Money and Banking in the United States”. (Rothbard was an economist, and a scholar of economic history). He doesn’t mention the use of whiskey.
Ah, that’s what he would want you to think. :)
I’m not an expert on the Whisky Rebellion. I just think that it’s an obvious thing that there is almost always a bigger motive when an extreme action is used by the government. Simply not paying taxes doesn’t seem enough, but eschewing the monetary system favored by those in government seems a more realistic motivation to me.
Washington had no grand scheme. He was a soldier and a farmer, a Cincinnatus. On economic policy, he did whatever Hamilton told him to do.
Not true, Washington was a nationalist even when he saw us as part of the British nation. His work on surveying led him to support an eventual plan to build something like the Erie Canal from the Potomac to the Ohio. He was very attuned to Hamilton’s ideas.
I’m no expert either, just read about in a few history books, mostly biographies (of Adams, Dolly Madison, a couple on Madison, Washington, and Hamilton).
I don’t see how the excise tax affected the monetary system. It seems to me that it was just a tax, paid with ordinary silver dollars such as had been used for a long time. Not a change in monetary regime.
The westerners had plenty of reasons for hating the tax.
Okay, had a chance to do three minutes of googling (bold font added by me):
And there was nothing to keep it from being an informal currency. But they couldn’t pay the new tax with it, which was a hardship in the West.
Exactly.