Origin of the Specious

Stephen J. Fortunato Jr.

In wars, even cul­tur­al ones, it is cru­cial to know the oppo­si­tion – their strate­gies, their the­o­ries, their decep­tions. Mark R. Levin’s Men in Black: How the Supreme Court is Destroy­ing Amer­i­ca, a New York Times best-sell­er, is a right-wing debaters’ man­u­al that fur­nish­es rhetoric to Tom DeLay, Bill Frist and their cohorts as they cam­paign to revamp the fed­er­al judi­cia­ry in their own image. An intro­duc­tion by Rush Lim­baugh and cov­er blurb by Sean Han­ni­ty (“a mod­ern con­ser­v­a­tive clas­sic”) alert the read­er to don foul-weath­er gear. But it is the chap­ter titles that set the table with raw meat: Rad­i­cals in Robes,” Social­ism from the Bench,” Al Qae­da Gets a Lawyer,” Jus­tices in the Bed­room,” etc.

Levin’s the­sis is as sim­ple as it is sim­ple-mind­ed. Good judges – too few by Levin’s count – are orig­i­nal­ists; that is, they look to the text of the Con­sti­tu­tion and the intent of the framers when decid­ing a con­sti­tu­tion­al ques­tion.” Activist judges, on the oth­er hand, see their role lim­it­ed only by the bound­aries of their imag­i­na­tions,” and they sub­sti­tute their will for the judg­ment of delib­er­a­tive bodies.” 

Orig­i­nal­ism, of course, has no basis in his­to­ry or log­ic, but this does not deter Levin, any more than it has deterred originalism’s most famous pop­u­lar­iz­ers, Robert Bork and Antonin Scalia. Levin occa­sion­al­ly ref­er­ences the Found­ing Fathers, but con­ve­nient­ly omits dec­la­ra­tions by both Alexan­der Hamil­ton and James Madi­son that the Con­sti­tu­tion was craft­ed to allow future gen­er­a­tions to adapt the law to changed cir­cum­stances. As Hamil­ton wrote in The Fed­er­al­ist Papers (no. 34), There ought to be a capac­i­ty to pro­vide for future con­tin­gen­cies as they may hap­pen; and as these are illim­itable in their nature, so it is impos­si­ble safe­ly to lim­it that capacity.” 

For Levin, the Supreme Court first lurched dan­ger­ous­ly off the nar­row path of orig­i­nal­ism in 1803 when it ruled in Mar­bury v. Madi­son that it could declare an act of Con­gress uncon­sti­tu­tion­al. Though Chief Jus­tice John Mar­shall, a Rev­o­lu­tion­ary War vet­er­an who cham­pi­oned the adop­tion of the Unit­ed States Con­sti­tu­tion at the Vir­ginia Rat­i­fy­ing Con­ven­tion, sure­ly qual­i­fies as a framer, Levin claims that Marshall’s deci­sion evis­cer­at­ed the pre­rog­a­tives of the exec­u­tive and leg­is­la­ture: For 200 years, the elect­ed branch­es have large­ly acqui­esced to the judiciary’s tyranny.”

Self-described orig­i­nal­ists con­front a num­ber of prac­ti­cal dif­fi­cul­ties caused by the pas­sage of time and the con­tin­u­ing advance of knowl­edge in the phys­i­cal and social sci­ences. They also face the bald fact that the authors of the Con­sti­tu­tion and its amend­ments left many terms unex­plained and unde­fined: prob­a­ble cause,” due process,” equal pro­tec­tion,” and so on. 

Levin proud­ly allies him­self with the theo­crat­ic right, includ­ing for­mer Alaba­ma Chief Jus­tice Roy Moore of gran­ite-block Ten Com­mand­ment fame. This is fit­ting, as orig­i­nal­ism has more in com­mon with bib­li­cal exe­ge­sis than any respon­si­ble form of judi­cial decision-making. 

Not since Aris­to­tle (348 – 22 B.C.) observed that judges bring about cor­rec­tion of law where it is defec­tive owing to its uni­ver­sal­i­ty” has any respon­si­ble legal thinker sug­gest­ed that judges must always defer to the leg­is­la­ture or the exec­u­tive. It was Jus­tice Ben­jamin Car­do­zo – an appointee of Pres­i­dent Her­bert Hoover no less! – who demon­strat­ed in his clas­sic, The Nature of the Judi­cial Process, that judges have always drawn upon the con­stant­ly evolv­ing store of knowl­edge out­side the law for assis­tance in mak­ing their deci­sions. If they did not, and if they always upheld enact­ments of the major­i­ty, African Amer­i­cans would still be rid­ing at the back of the bus and women would be banned from prac­tic­ing law. 

A crafty polemi­cist for the right, Levin sprin­kles his dia­tribe against the Supreme Court – past and present – with the lan­guage of indi­vid­ual lib­er­ty and racial jus­tice. He points to the infa­mous deci­sions of Dred Scott uphold­ing slav­ery and Kore­mat­su allow­ing the World War II intern­ment of Japan­ese-Amer­i­cans as exam­ples of judi­cial abuse. But Levin fails to grasp that the majori­ties in both these cas­es employed the judi­cial phi­los­o­phy he advo­cates, defer­ring to a con­gres­sion­al enact­ment in the for­mer case and in the lat­ter to exec­u­tive orders issued in the name of nation­al security. 

In fair­ness, how­ev­er, it must be said that through­out his book Levin cap­i­tal­izes the L” in left, per­haps sug­gest­ing that he sees pro­gres­sives as a for­mi­da­ble polit­i­cal force. Let’s hope.

Stephen J. For­tu­na­to Jr. was as an Asso­ciate Jus­tice of the Rhode Island Supe­ri­or Court for 13 years. He is now an Adjunct Pro­fes­sor at the Roger Williams Uni­ver­si­ty School of Law.
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