Prior commitments prevented me from participating with Professor David Barron in the Cato / American Constitution Society forum on The Dirty Dozen, which I co-authored with William Mellor. I’m especially gratified, therefore, to have this second opportunity, which I will use to document seven errors by Professor Barron in his blog postings here and here. Of course, the best and most complete rebuttal is the book itself, available for the shamefully low price of $17.13 at Amazon. 

Barron #1: “The crime of the Supreme Court since the 1930s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up to the New Deal.”

Facts: Laissez faire is never mentioned in the book – not once. Included among our 12 worst cases are those involving the non-delegation doctrine, campaign finance regulation, gun owners’ rights, civil liberties, civil asset forfeiture, and racial preferences – none of which has anything to do with laissez faire economics. Yes, we also cover cases relating to property, contract, and other economic liberties; but to suggest that we view the Court’s major crime as not upholding laissez faire is to ignore most of our book.

Barron #2: “Number one on The Dirty Dozen’s hit list is Helvering v. Davis … because it upheld Social Security on a broad theory of federal spending and taxing power.” Moreover, Helvering’s “interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding. Madison had one view, Hamilton another.”

Facts: First, Helvering’s focus on Social Security was incidental to its inclusion. Helvering is one of The Dirty Dozen because the Court, in favoring Hamilton’s view of the General Welfare Clause, made a mockery of the principle of enumerated powers. The result: redistributionist schemes – including retirement programs, welfare, hurricane relief, medical care, housing subsidies, farm supports, and grants to the arts – that have no constitutional foundation, even if justified on policy grounds.

Second, we have never argued that a clear and consistent original understanding is required to support a particular constitutional interpretation. Instead, we note that textualists consult the structure of the Constitution whenever the original understanding is ambiguous. And we explain (p. 216) that “structure relates, first, to the internal relationship among the various provisions of the Constitution and, second, to the overall design or framework of government that the Constitution establishes.” No reasonable legal scholar can deny that the Constitution was structured to restrain government and limit its operations to specifically enumerated powers. By that all-important criterion, Hamilton’s open-ended conception of the General Welfare Clause cannot be defended.

Barron #3: The authors “candidly (and admirably) concede that originalism is actually of little help in explaining their hostility to a number of cases on their list.”

Facts: We make no such concession. Professor Barron has confused “originalism” (interpreting the Constitution in accordance with the meaning of its words when ratified) with original intent (focusing on the values and objectives of the drafters and ratifiers). As Justice Scalia has written, “It is the law that governs, not the intent of the lawgiver.” We recognize (p. 216) that “applying original intent … begs several questions: Which drafters or ratifiers are authoritative? How do we know their intent? … How are differing views among the drafters and ratifiers to be resolved?” But we heartily endorse originalism. Judges whose decisions are anchored in the words of the Constitution have an objective basis for their views. Even when the meaning of the words is unclear, it provides a starting point, which can be supplemented by an examination of constitutional structure, purpose, and history.

Barron #4: Wickard v. Filburn is included because the Court “sinned by adopting an expansive view of the commerce power. … Wickard was the key precedent for the decision upholding the constitutionality of the 1964 Civil Rights Act.… The Dirty Dozen never faces up to that obvious problem.”

Facts: Under Wickard v. Filburn, the commerce power is not merely “expansive”; it is incoherent and all-encompassing. Article I, section 8, of the Constitution authorizes Congress to regulate interstate commerce, not to restrict activities that are neither interstate nor commercial. Mr. Filburn’s crops were grown within a single state for consumption by his family and farm animals. He didn’t buy the crops; he didn’t sell the crops; they didn’t cross state lines; and his activities had no perceptible impact on interstate markets. Yet Congress, with the Court’s approval, brazenly distended the Commerce Clause – unleashing it from the operative word “commerce” and granting to the federal government regulatory authority over virtually all manner of human conduct.

To be sure, the 1964 Civil Rights Act is where the rubber hits the road. Our position is straightforward: The Act has no constitutional pedigree. It addresses private, not state actions; so it cannot be traced to the Fourteenth Amendment. It has nothing to do with eliminating state impediments to the free flow of interstate trade; so it cannot be shoehorned into the Commerce Clause. That said, the 1964 Civil Rights Act was an unambiguously good thing; it helped erase an unconscionable assault on human dignity. We are glad that it happened. We applaud its aftermath. And we recognize that the Civil Rights Act is a settled principle of American law, not to be revisited by the courts despite its constitutional infirmities. 

Even if we are wrong about those infirmities, our position is intellectually honest – unlike the position of those who insist that, because the Civil Rights Act is beneficent, it must necessarily be constitutional. Some activities offend the Constitution – e.g., torture – even if they yield universally acclaimed benefits – e.g., preventing a nuclear attack. The remedy in such cases is either to amend the Constitution or acknowledge the disconnect. In this instance, we choose the latter alternative.

Barron #5: “The authors seem to be arguing in simple, consequentialist terms. A case is badly decided if it has some bad effect in the real world.” 

Facts: We asked 74 legal scholars to name the post-1933 cases that had the most destructive effect on law and public policy – either by expanding government powers beyond those that are constitutionally authorized, or imperiling individual liberties that are constitutionally protected. Further, we stipulated (pp. 5–6) that “worst” cases must have led to anti-liberty outcomes and been based on erroneous legal reasoning. Accordingly, consequentialism played a role; but we did not presume, as Professor Barron asserts, “a case is badly decided if it has some bad effect.” Not a single case in our book was selected solely because it had a bad effect. Unless the rationale for the case was legally defective, we did not include the case among The Dirty Dozen. “Bad effect” and “badly decided” were two separate and distinct criteria. Each selected case had to qualify on both grounds. Indeed, the purpose of our book was to dissect each case and demonstrate not only its bad effect, but also how and why it was badly decided.

Barron #6: The authors’ criterion for judicial intervention is based on “libertarianism, which does not even begin to address the problem of private power.”

Facts: This allegation by Professor Barron reflects a profound misunderstanding about the nature and purpose of the Constitution. The Constitution is not a criminal or civil code that private citizens must obey. Rather, the Constitution has two primary objectives: to secure individual rights, and to limit the power of government. It’s not private people or private power that the Constitution constrains. Instead, it’s government officials and government power. The Constitution is first and foremost a code of conduct for the legislative, executive, and judicial branches of government. Our “libertarian” theory of judicial intervention doesn’t speak to private power because the Constitution doesn’t speak to private power.

Barron #7: “You still need a sorting theory. When should judges, while engaging, defer and when should they act?”

Fact: We have a sorting theory, which we document at some length (pp. 215–24). Members of the Court must have an allegiance to the text of the Constitution. If the original meaning of the text is unambiguous, textualists adopt that meaning unless it leads to absurd consequences. If the meaning is blurred, textualists must interpret the words in accordance with an originalist theory of our founding documents – in particular, a respect for federalism, separation of powers, limited government, and individual rights (both enumerated and unenumerated). Those were the principles that the Framers applied in crafting the Constitution. By comparison, members of the Court who subscribe to an anchor-less “living Constitution” will be disposed to use their own preferences and ideology as a basis for their decisions – thereby negating the written documents that have sustained a free society for more than two centuries.