James Madison envisioned the judicial branch of our government as “an impenetrable bulwark against every assumption of power in the legislative or executive.” In reality, the U.S. Supreme Court has been more like a rubber stamp, allowing all manner of harebrained government schemes to survive despite their blatant conflict with the text of the Constitution.
Yesterday’s dismal ruling in National Federation of Independent Business v. Sebelius was no exception. Not only did the Supreme Court vote to uphold ObamaCare’s requirement forcing all Americans to buy health insurance, Chief Justice John Roberts even cooked up an insidious new way for Congress to run our lives via its vast powers to “lay and collect taxes.” Where's Harriet Miers when you need her?
But don’t worry, it gets worse. Here are the top 5 most unlibertarian Supreme Court rulings from the last 40 years that are still standing (and the individual mandate didn’t even make the list!).
5. Miller v. California (1973)
A landmark First Amendment ruling and an official permission slip for moralists and censors ever since, this 1973 case reaffirmed the government’s right to prohibit speech deemed to be obscene by replacing an existing vague and murky legal definition of obscenity with an all new vague and murky definition. The case involved Marvin Miller, a California man convicted in a lower court on obscenity charges for sending unsolicited sexually explicit pamphlets through the mail. When the Supreme Court reviewed the case, they agreed with the conviction, declaring that “obscene material is not protected by the First Amendment,” but noting the difficulties in determining what exactly should count as obscene. The Court drew up new obscenity guidelines which instructed authorities to consider:
whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest
whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Problem solved? Hardly. The Miller test remains impossibly vague, and leaves it up to the arbitrary whims of judicial authorities to determine what sort of speech can be prosecuted under the law for being outrageous or offensive. A better reading of the First Amendment would make clear that the right answer is: none.
Next: Cops, prostitutes,