Book Review: Men In Black
By Scott Editor | More Book Reviews
May 20, 2005

Mark Levin's Men In Black: How the Supreme Court is Destroying America couldn't have arrived at a more timely fashion. Levin, a constitutional lawyer and conservative commentator explores the history of our Supreme Court and warns of the daunting path it has traveled. What was originally designed to be a check on the legislature's adherence to the Constitution, the Supreme Court has evolved into a machination of judicial activism to the likes of what our Founding Fathers could have never imagined when they created the least dangerous branch of the government.

Why is judicial activism so dangerous according to Levin? Because it places the power of policy creation in the hands of nine unelected, unaccountable men and women who recklessly trample the Constitution to create laws when their job is simply to interpret them. Says Levin:

Active Supreme Courts have justified slavery, segregation, and racism. They helped precipitate the Civil War and set back race relations for more than a century. But instead of learning the painful lessons of the past -- that the Constitution must guide their approach to the law -- several current Supreme Court justices are no less committed to judicial activism (pg 17).
Levin believes liberals serving on the federal bench have either forgotten or ignored their obligation to narrowly interpret the Constitution, and have instead broadened the definitions of what is otherwise indubitable language.
What does it mean to "establish" a religion? Liberals today believe the government establishes a religion if a nativity scene is placed on a town square at Christmas. But the framers had a much different understanding. They had in mind the Church of England: a formal union of political and ecclesiastical authority in the hands of the state (pg 36).
One of the most egregious acts of judicial activism came not when the Supreme Court broadly interpreted the Constitution to twist already-written text, but when it manifested a "right to privacy" that is nowhere found in the Constitution - and has cleared a path for more rights to be "discovered" that couldn't get passed by the people at the ballot box.
Today, legalized abortion is the law of the land because the Supreme Court decided in 1973 that its recently created constitutional right to privacy also included a new constitutional right to abortion. If you look in the Constitution, however, you will find no general "right to privacy" any more than you will find a right to abortion -- and for good reason: It's not there. The framers assumed no general right to privacy, because, to the state the obvious, criminal and evil acts can be committed in privacy (pg 55).
One only needs to read Levin's book to understand why so many Americans are opposed to liberal activism and why President Bush is obligated to nominate only originalists to the federal bench, which he promised to do on many occasions. The question now isn't whether the president will follow up on his promise but whether the Senate will allow his nominees the chance for a vote.

The one issue where I find myself detracting from Levin's arguments is the war on terror. Levin is an ardent supporter of the actions in Afghanistan and Iraq and believes the president has untouchable powers in dealing with terrorists.

Enter Judge Andrew Napolitano, the senior judicial analyst for Fox News whose excellent book Constitutional Chaos: What Happens When the Government Breaks Its Own Laws, released earlier this year argues that American citizens -- even in war time -- deserve access to due process.

This is the one issue that often splits generally right-leaning thinkers like Levin and Napolitano. The Judge supported the majority decision in Hamdi v. Rumsfeld, a case involving an American citizen who found was by American soldiers in Afghanistan. The government labeled him an enemy combatant and sent him to Guantanamo Bay to remain indefinitely without being charged with a crime.

The 8-1 majority ruled that the government stripped Hamdi of his constitutional rights and abused its powers by detaining him indefinitely. Writing on the opinion Napolitano expressed his relief, saying "the Constitution still lives."

Only Clarence Thomas dissented, believing the president has almost unlimited power during wartime. Levin agrees with the dissenting opinion and takes his argument a step further by rationalizing Congress's approval of military force overseas as an informal declaration of war. He expands on Thomas's decent which Napolitano dismisses as "pitiful."

Interestingly, both Levin and Napolitano have released books this year criticizing the government for its abuse of powers and the courts for its liberal judicial activism. But because they both define the military action in Afghanistan and Iraq differently, they consequently disagree on which branch of government has jurisdiction. Because Levin believes we are at war the courts should have no jurisdiction over the president's actions. Napolitano on the other hand sees the military action overseas as something short of declared war, and writes, "The system {of checks and balances} collapses when a court neglects its duty to second-guess the executive government."

To which Levin responds, "These cases [Hamdi and others] illustrate perhaps more than any others just how dangerous and reckless an unbridled judiciary can be, not only to the Constitution , but to our national security. "

Another avenue of Levin's I refuse to walk down is his proposal to give Congress a veto override of Supreme Court decisions, which he believes would effectively strip away the judicial branch's power. The problem with that is Congress would veto every ruling to which they disagree, while the Supreme Court has maintained at least some impartiality over the years and is more likely to be fair than Congress. Aside from that I admire most of Levin's proposals because either the Supreme Court really is too powerful or they've quantified their actual resources - which could be corrected by appointing more originalists to the courts.

Men In Black: How the Supreme Court is Destroying America is one of the most important books of the year and a must-read for anyone interested in the current struggle of judicial nominees. While I don't agree with every conclusion Levin makes (that Congress has unofficially declared war on terrorism) the purpose of this book is not diminished because he perfectly demonstrates how judicial activism has become a tyrannical force in the United States of America.

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