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Origin of the Specious

Stephen J. Fortunato Jr.

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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.

Win a trip for two to Cascais, Portugal!

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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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