on September 19, 2015
Mark Levin believes that the Supreme Court is shredding the Constitution. While he can point to examples of Supreme Court justices who were feeble or dishonest and to bad decisions, his argument will fail to persuade anyone other than the already converted. His book is full of straw man arguments and fails to make the case for his preferred method of interpretation, namely originalism.
The weaknesses in his arguments are apparent from the first sentence of the preface, where he claims that "The biggest myth about judges is that they are somehow imbued with greater insight, wisdom and vision than the rest of us . . . " Who is perpetuating this myth? He doesn't say. However, by putting forward this straw man, he draws the sympathetic reader into an us vs. them mentality.
In chapter one, he claims that "Generally speaking, judges tend to adhere to one of two philosophies." These are set out as originalists, those who read the text of the Constitution as they believe that the founders would have, vs. the activists, who impose their own personal opinions without regard to law or the text of the Constitution. To reduce all judges to originalists or activists is absurd. There are many different schools of constitutional interpretation. Originalism is favored by a small minority of academics and one notable Supreme Court justice, Antonin Scalia. The problem with originalism is that it allows the user to come up with his own version of what the founders intended and allow it to trump the language and structure of the Constitution. It fails to answer the question of which founders' intent we should rely on, since they were a fractious bunch who rarely agreed on anything. I believe that the Constitution can be interpreted through a number of methods, including text, intent, structure and common sense. I take strong exception to the notion that judges who follow these methods are simply imposing their own preferences as constitutional writ. Levin never makes the case for originalism. He treats it as though it appeared fully formed from the sky and that we must worship it.
Levin's arguments seem to show that he has little regard for the Constitution which he claims to revere. In the preface, he gives examples of justices who became unfit for office due to illness or infirmity. However, he fails to make the connection that the Constitution's requirement of life tenure for federal judges, which was done to create judicial independence, is the cause of this problem. In chapter 3, he savages the notion of judicial review and suggests that the Supreme Court has been on the wrong track since Marbury vs. Madison in 1803. However, judicial review is a necessary attribute of both separation of powers and the Supremacy Clause. Without judicial review, states and Congress could simply ignore the Constitution whenever they felt like it. Judicial review is the mechanism for insuring that the Constitution remains the supreme law of the land. It is also a necessary component to the system of checks and balances created by the founders. Levin contends that the judiciary is a branch of unelected dictators running roughshod over the other branches. However, no one gets to the Supreme Court without being nominated by the President and confirmed by the Senate. Thus, the other two branches have a say in who gets to the Supreme Court. The Supreme Court sometimes does some supremely stupid things, but so do the other branches. (Does anyone remember Watergate or Iran-Contra?). A government of laws must be administered by fallible men. They will inevitably get it wrong some or much of the time. However, this is not a problem unique to the judiciary.
What is Levin's tonic for the out of control judiciary? In chapter 13, he talks about "Restoring the Constitution." How can this be done? He says that the legislative and executive branches can use (their) constitutional powers to correct the imbalance created by a federal judiciary that has used 'judicial review' to undermine the Constitution and the framework of our government." However, if the power to rein in the judiciary was always there, why hasn't it been done? Levin unintentionally provides the answer. In 1804, Congress attempted to impeach Justice Samuel Chase for presiding over a trial in an extremely biased and arrogant manner. They failed. In 1937, FDR tried to pack the Court to get what he wanted. Although he was not successful because the court packing scheme became very unpopular, he got what he wanted indirectly with the "switch in time that save nine." He also discusses attempts to limit the Supreme Court's jurisdiction which have failed. In the end, he suggests the need to amend the Constitution to rein in the judiciary. This is, of course, available. However, it would suggest that the founders were not the all-knowing demigods that originalism supposes them to be, since they obviously created the mechanisms which allowed the Court to obtain too much power.
on January 18, 2006
The central argument of Mark Levin's book "Men in Black" centers around the belief that "activist" judges have violated their constitutional duties, usurped legislative and executive authority, and are well on their way to establishing tyrannical control over all spheres of American life. The author makes a serious claim that deserves a serious argument. How exactly does he go about proving his point?
The first prong of Levin's strategy is to debunk the "myth" that Supreme Court justices are men of impeccable moral quality. Levin highlights the lives of 15 justices in this section. In short one paragraph, and in some cases, one sentence "biographies," Levin calls attention to low-points in each of these justices' lives. In some cases the comments have some truth, others, such as mention of Justice Hugo Black's membership in the Ku Klux Klan are simply malicious smears (not unlike the treatment of Samuel Alito's membership in a Princeton eating club during recent Senate confirmation hearings).
Like many items in Levin's book, these biographical items are stated as fact without being placed in any context. Yes, there have been some miserable justices on the court--particularly in the court's early years--however, there have been quite a few great legal minds and people of tremendous integrity and moral courage.
In fact these great legal minds outweigh the dolts and political hacks. Levin would have readers believe otherwise. The 15 justices that Levin selects are simply not representative of the 100+ men and women who have served with some degree of distinction in our nation's highest court. Further, it's saddening that Levin would begin his argument by taking this low-road approach. In debate, vicious personal attacks are rightfully seen as a means to mask a weak argument. From the standpoint of dealing with a point of controversy head-on this approach raises immediate questions about the merits of the author's argument in a broader sense. With the Supreme Court and life under a Constitutional system of governance, it's the reasoning behind the decisions that matter--not whether justices measure up to Levin's personal standards of human worth.
Levin attempts to gain further credibility for his "activist" court claim by invoking the Founding Fathers Constitutional debates. To support his claim the author cites a 100 word quotation from Madison's "Notes on the Constitutional Convention," a 30 word quote from Hamilton's "Federalist 78," and a 400 plus word quotation from anti-Federalist Robert Yates. The quotation from Madison simply recounts, in brief, concerns voiced by two members of the Constitutional Convention about judicial power. Levin's discussion of Hamilton's "Federalist 78" dismisses Hamilton. What's most curious is that Levin would look to Yates--a delegate from New York to the Constitutional Conventional who walked out of the convention and then actively opposed the Constitution's ratification--on the issue of the Founders' intent. Yates was no idiot--his criticisms and concerns at the time of ratification were not without merit--however, given Madison and Hamilton's much more active role in the Constitution's creation, the reasonable judgment would seem to be to defer to their views on questions of judicial authority in the Constitution. Strangely, Levin seems to do the opposite by citing Yates at substantially greater length.
Levin's third prong of attack is to debunk the "myth" that judicial decisions are based on a sound legal reasoning. In Levin's view the court has been occupied by a handful of "originalists," who are only guided by the Constitution's enumerated powers and who only interpret laws in light of the framer's intent. And then there are the "activists," who in Levin's view, are judges who seem to live for the sole purpose of inserting personal judgment and preferences into their judicial decisions. Unfortunately, the "originalist" "activist" distinction has no basis in reality. Yes, there are some justices who tend to read the Constitution literally looking to the Founder's intent as a guide; others tend to view the Constitution as a living document that is capable of speaking to changing times and changing needs. Most justices, however, fall somewhere in between--and even individual justices apply these standards differently in different areas of political life. All the judicial viewpoints are tempered by the times, education, and life experience of the justices. Levin's view is simply simplistic.
Levin attempts to further discredit the court as in institution by focusing on some of the Supreme Court's worst decisions. Just as in the case of his justice "biographies" this quick hit parade of the Supreme Court's worst moments is misleading and disingenuous. Anyone with a little knowledge about Supreme Court history knows about such low moments as the "Dred Scott v. Sanford" decision in the 1850s, which held that no black American enjoyed any legal rights under the Constitution (despite state laws and legal precedent to the contrary); or "Plessy v. Ferguson" in the 1870s which created the "separate but equal" doctrine. However, Levin's statement that the "Dred Scott" decision precipitated the Civil War is reductive, revisionist history at its worst ("Activist Supreme Courts have justified slavery, segregation, and racism. They helped to precipitate the Civil War . . ."). Levin's failure to mention the debates over slavery that occurred during the signing of the Constitution, or events such as the Missouri Compromise, Lincoln's 1860 election, or even the Confederate secession from the Union are major omissions. To suggest that a court decision precipitated the Civil War, or even to say that it was a major contributing factor, is to ignore the more obvious economic, political, and historical realities of the time. Of course, the central argument of Levin's book depends on an all-powerful Supreme Court boogeyman, so what's to prevent him from overlooking a few inconvenient facts? The reality, of course, is that history and the historical context of these legal decisions is much more complicated than Levin would lead us to believe.
Perhaps the most ironic part of "Men In Black" rests in the author's conviction that popular initiatives are the antidote to runaway "activist" courts. Term limits are one thing, "legislative review" of Supreme Court decisions is an entirely different beast. If one accepts the author's premise about runaway "activist" courts then one must also begin to question the judgment of the popular will. If the people continually chose elected officials who misguidedly chose these 'activist judges,' it follows that the error in judgment ultimately rests with the people, not the judges. A reading of Levin's book would suggest that this has been the case since our nation's founding. For him to then look back to the people for the corrective action just doesn't make sense. It is a serious failing of "Men in Black" that the author doesn't trace the ludicrous consequences of his ludicrous claim to its equally ludicrous logical conclusion.
The reality is that our system of government has worked for over 200 years and likely will continue to work for years to come. Readers who wish to understand the Constitution or current Constitutional debates are better served by looking towards Madison and Hamilton or even reading actual Supreme Court decisions. This exercise requires a great amount of time and reflection, however, the payoff for this approach is significantly greater than what readers will gain from spending time with Levin's misdirected exercise in Constitutional jurisprudence in "Men in Black."
on June 3, 2015
The discs were damaged and I'm missing parts of the book because of it. I would like my money back
If you are new to the study of constitutional law, a conservative, and merely looking for ammunition to reinforce your views rather than actually learn anything, this is your book.
If instead you truly want to understand the debate regarding judicial interpretative methods from a conservative perspective, then I highly recommend you go elsewhere. Kenneth Starr's First Among Equals: The Supreme Court in American Life, Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty and Antonin Scalia's A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series) are three excellent starters.
The issue at hand is judicial activism and tyranny. Rather than a respectful analysis of original intent, original meaning, and abstract principalism (the three major interpretative methods) as debated in Antonin Scalia's "Matter of Interpretation", this book defends "originalism" vs. a court hijacked by "the extreme left". Problem is, while some liberal rulings have been activist, so have many conservative rulings.
This author is actually advocating extreme activism, without telling you, by moving towards an "originalist' method (really original intent), without revealing this to the un-learned reader. Original intent is a method that actually promotes judicidal activism because it provides opportunity for a judge to ignore the actual principle(s) and as Scalia argues, original meaning in the Constitution. Original intent is just as insidious as those promoting a "living constitution".
For example, most Americans would agree our right to freely communicate is explicitly protected by the 1st Amendment and paramount to maintaining the strength of our democratic republic. This is obvious by reading the 1st Amendment itself based on the liberal method of reviewing the principal explained in the text, using Scalia's original meaning approach (which all liberals on the court also do), while also discovering we never explicitly delegated any powers to government in the Constitution to broadly regulate or prohibit our right to communicate - the latter being the more important aspect. However, it can be argued that the "original intent" (the Levin preference for interpretation) of that clause of the 1st Amendment was merely to protect Congressional speech from possible tyranny by the executive branch like British Parliament's protection against tyranny from its king (which is where the text comes from). This was certainly the intent of many members (Federalists) of the 1st Congress who passed the Bill of Rights, and can be validated when subsequent Federalist members of the 5th Congress passed the Alien and Sedition Acts which prohibited some speech by those not in Congress.
So using the author's own flawed logic, normal, everyday Americans don't have constitutionally protected free speech rights because a so-called strict constructionist judge discovering original intent can find that some members of Congress never intended for all Americans to have free speech rights when they passed the Bill of Rights.
Of course to an abstract principalist like Ginsberg or a textualist like Scalia that is absurd. Free speech as a principal is clearly indicated and is the "plain meaning" of the text when coupled to the lack of government power which was not explicitly delegated by "the people" to government (the constitution grants no powers to broadly regulate/prohibit communications). Levin's brand of jurisprudence is fatally flawed because it seeks to find rights in the text of the Constitution and the notes of the framers when instead the Constitution is to be read where the obligation resides on government to prove it has been delegated powers to regulate or prohibit our activities beyond defending the superior rights of others.
Scalia's book makes the case for textualism, which is closely related to original meaning, and opposed to Levin's "original intent" given its susceptibility to judges ruling on their politics by seeking past arguments (intent) that support their preconceived positions. Scalia also provides guest writers a chapter to rebut his thesis. Scalia also provides a chapter that compares the structure of our constitution, where many of our clauses are structured as principals, relative to modern Germany's statute-centric constitution. This provides a reader a broad perspective of how the three major camps interpret a constitution with an inconsistent structure. And these prospectives come not from a talking head propagandist like Levin, but instead from serious constitutional scholars.
Starr, Solicitor General for both Reagan and Bush I, and yes, the guy that investigated Clinton, wrote a great book on the cases that define the issues most Americans pay attention to regarding the Supreme Court. Starr's extensive experience arguing before the Court and his respectful presentation of the liberal viewpoint provides readers with a chance to learn the court's and his opponent's perspective. Thus Starr's readers are provided the conservative, liberal, and Court's perspective; Levin provides only raw meat for the angry.
Reading the Starr and Scalia book will provide the Conservative reader with the cases that define the current court and the interpretative methods used by all Appeals Courts. The Levin book is for those that would prefer to bully their ideological opponents, rather than actually learn why we are where are today. Would you rather have the perspective of Sean Hannity (Levin), or the perspective of conservatives on the court itself or who have spent a career aruging before the bench (Scalia & Starr)?
Lastly Levin doesn't seem to undertand that courts have a duty to protect Americans from their government, he continuously misinterprets courts striking down legislation as "making laws" when in fact they are striking down clearly unconstitutional laws designed to deprive us of our freedoms and extend power to the Government, power we never explicitly delegated to government. Protecting our rights was a primary motivation for creating a judicial branch, not a power the judicial branch usurped by way of Marbury v. Madison as Levin claims; the opinion in Marbury merely notes what the framers meant by judicial power when they exercise their power to defend Americans from encroachment of government power that Levin suppports. Levin fails to understand the government is empowered by "we the People" and the judiciary's primary objective is to protect Americans' constitutional rights even over tyrannical legislators that would deprive us of those rights for political gain.
on January 19, 2006
First off, anytime you see a book with "destroying/ruining/endangering America/the World" in the title, what the text generally is attempting to do is encourage you not to think. A fundamentalist with an atom bomb would be "destroying America." An activist Supreme Court Judge would be making a legal mess our children would have a job of cleaning up later, but the U.S. would still be around long after that Justice passed on.
The greatest argument for this book being in the Fiction section lies in the fact that Levin points at decisions going back through the history of the SCOTUS. The point that's overlooked in his screaming in horror about them, is that the country is still here, despite the best efforts of these allegedly awful, horrible people. What he calls activism is the court acting as a voice of moderation - all too important in a time where political discussions are presented to the public in five-minute debate segments on TV news.
As far as research and authorship goes, like Coulter with her ridiculous end-notes, Levin has decided to pursue the appearance of scholarship without actually getting any on his hands. Yes, he looks up quotes and puts them in context, but doesn't look beyond the surface, nor does he draw any meaningful conclusions from them. If you want an example of someone picking the facts to fit the theory, Levin is your man.
So what is Levin complaining about?
Pretty directly, it's Marbury vs. Madison and the decisions which that made possible, allowing the Supreme Court to become the arbiter of what is and is not Constitutional. Now step back a moment: which branch of government is best equipped to decide questions of constitutionality?
1. A branch led by two men (the President and Vice President), immersed in the cycle of campaign politics every four years, serving for a maximum of eight years, all the while working with their hands on the controls of the machinery of government.
2. Several hundred men, immersed in campaigning every two or six years, dealing with incredible pressures from all sides as they craft the laws and apportion the funding of government (as well as presumably exercising oversight on the other two branches of government).
3. Nine men (it used to be fewer) who are appointed wholly within the public view after long (and sometimes acrimonious) debate over their qualifications, standing, and legal/ideological positions, ultimately decided on by the upper chamber of the Congress.
I'll go with #3, and very happily. It's far better than having two or more branches having equal authority on the subject and throwing out different opinions of what Consitutional means. The President gets the armed forces and the police, the Congres gets the money and the law-making, it seems perfectly reasonable to me that the Supreme Court gets nothing but the ref's whistle.
Watch the Court, be informed about it, and know what's going on - but don't play Chicken Little and claim it's "Destroying America."
on January 18, 2006
Poorly researched, and poorly written. I really expected someone with a law background to have a better grasp of the English language.
Other reviewers here already go into great detail about the poor research, and the "truthiness" of many of his claims. So I'll just point out the biggest point to get about this book: The whole premise is flawed.
There is NO SUCH THING as an "activist judge." Some judges interpret the Constitution as a document RESTRICTING power; other judges interpret it as a document that ALLOWS anything not explicitly forbidden. The vast majority of judges are somewhere in between those two extremes. Neither extreme is inherently correct, nor were either endorsed by the Founders. Levin cherry picks quotes to imply that this is indeed the case, but an honest reading of the original quotes in context shows the dishonesty of this approach.
Levin, like many folks on the far right, use the term "activist judge" to refer to anyone who interprets the Constitution in any way that they themselves don't like...while heaping praise on those judges who share the ultra conservative agenda, and change our laws accordingly.
Bottom line, if you are looking for right-wing propaganda for some reason, this book might be useful for you. On the other hand, if you are looking for a well written, well researched, honest book based on actual facts, you will have to look elsewhere, unfortunately.
on April 3, 2005
Levin's logic goes that an activist Supreme Court is wrong. But
at the same time Slavery, Segregation and Civil Rights are
the fault of the court because the court wasn't activist
enough. Its a strange argument because Levin in the book
explicitly and repeatedly as much as says that all the decisions
that ended segregation and most of the civil rights laws are
not consistant with the constitution.
Levin's logic also suggests that the court is not flawed because
of modern liberals, but has been flawed since at least the
Dred Scott case and maybe as far back as Madison vs Marbury.
He is saying that rather than liberals being the problem its
the constitution itself. Further, that the Supreme Court has
never been a properly working institution.
Levin goes on about how the court is a threat to freedom, but
he doesn't really come up with any examples of how or what
freedoms the court has taken from him. His examples, time and
again, are cases where its the freedom of congress or the
president thats at issue.
on March 3, 2005
If you use these reviews to form an opinion about a book, it
is critical that notice which reviews are actually talking
about the book and the law. Versus those that are recycling
talking points from radio programs. Its not hard to tell who
Rather than original intent or the founding fathers, this
book calls for a return to the judicial activism of the
Taft court era (roughtly 1916-1938). While Levin would
pretend that his views of the courts and the constitution
were standard before the 1930s, nothing could be further
from the truth.
The so-called conservatives reject Justice Marshall and
most of the founding philsophy of the court. Sadly most
who scream about original intent don't even seem to know
who John Marshall was. And their ideas of original intent
go against the views of the great (and not necessarily
liberal) justices of the court in history.
And those who claim that the constitution is always clear
in its meaning have no idea of the difficulty and complex
history of the commerce clause. The language in the
constitution is vague and enough individual decisions exist
to justify upholding or overturning nearly any law. The
true conservative view on the clause is that because it
is so vague, it should be used to overturn laws as little
as possible because every new decision only makes the
meaning of it more complicated. The Taft court view was
that the court should be an active guardian in overturning
As others have pointed out, this book claims on one hand that
the court is causing an erosion of self-government but on
the other hand makes an argument for a more activist court
that should overturn laws and previous decisions as the
Taft court did with little but political reasoning.
If you think the supreme court is a tyranny oppressing you,
then what you should want is a court that pulls back from
making constitutional pronouncements and overturning laws.
But it seems that the same people who think the court is
destroying America want it exercise even more powers to
turn the clock back legally to 1932.
The principals of Charles Evans Hughes have always struck
me as being the true rules for a conservative court:
The court should only decide real cases (no trojan horses like
the sodomy case)
The court should not get involved in political questions.
(abortion, school prayer, using the commerce clause against
regulation and civil rights)
The court should not decide questions of the constitutionality
of legislation unless the questions are necessarily presented
and must be determined.
The court should not question the wisdom of congress or
states in passing laws. The widest disgression has to be
to given in terms of declaring laws unconstitutional.
In my opinion, the courts greatest mistakes have been in
getting too deeply involved in social issues and religious
issues which are too political. But at the same time, returning
to the ideas of the Taft Court (Silence on civil rights, but
stepping in to say that regulation of child labor was beyond
the constitutional powers of the government) is just as
political and just as wrong.
If you turn back the clock to the taft court, that would
also involve overturning the civil rights act and voting
rights acts of the 1960s. Civil rights enforcement in
contracts, in business and in the states would be beyond
the power of the federal government. That doesn't seem
like a sane thing to do to me.
on January 19, 2006
Another bizarre and disgusting attempt by rightwing ideologues to destroy our system of checks and balances. What they clearly want is to gut the Constitution and install a strongman theocrat as President, with the other two branches simply rubberstamps for his diktats.
It's unfortunate that so much paper was wasted on this book, when it could have been put to better use as bathroom tissue.
Today's sore winners will be judged by history with astonishment and disbelief. The far-right controls the Executive and Legislative branches, and has usually had a five-to-four ideological lead in the Judicial branch. Now that GWB gets to fill two vacancies, this grip will get even stronger. But somehow, the dominant neoconservatives still think that everyone else is engaged in a vast conspiracy to keep them down, and they're now trying to apply their philosophy to all thought and opinion in both the present and the past. Here, Levin's every single paragraph can be debunked as narrow neocon ideological interpretation. It sure is easy to win a political argument these days when all you have to do is accuse someone of non-neocon behavior. Levin contends that any Supreme Court Justice at any point in history, who did or said something that doesn't line up with the narrow neocon worldview precisely, is/was an opinionated activist. This is shameless partisan ideology, not constitutional analysis.
The fact that Supreme Court Justices are appointed for life means that they are not prone to swaying with public opinion. Whether this is good or bad has been dwelt upon by scholars for decades, and opinions on the matter fill hundreds of volumes. Also, whether the Constitution is "static" or "living" (adaptable) is a matter of similar widespread debate. Any small book like this that claims to have the definitive answers on vast issues like these is, by the most basic logic, partial to a particular viewpoint. Levin clings to "moral" arguments - that is, the neocons' morals which they're convinced everyone subscribes to, both now and in the past. Levin incessantly criticizes the "activism" of Supreme Court Justices from throughout history, even those who were right wing but not right enough. But there are two glaring omissions – the Justices who most faithfully parrot the neocon worldview. Clarence Thomas is barely mentioned at all; while Antonin Scalia is continuously lionized as the paragon of correct constitutional interpretation, though Levin miraculously forgets Scalia's tendency for conflicts of interest, such as vacationing with Dick Cheney just days before ruling in Cheney's favor in the Energy Task Force case.
This book can be ignored as opinion only, under the guise of selective constitutional interpretations. In just one case of extreme ideological (non-)interpretation, Levin is a big fan of the 14th Amendment (okay so far), but conveniently forgets to describe how this amendment has been abused by corporations to get out of paying taxes or following regulations they don't like. The shaping of public law and policy to enhance the profitability of select corporations is shamefully rampant in the GWB administration (just look at the energy industry), and this is far more damaging to participatory democracy than the non-neocon pronouncements of "activist" judges. But Levin knows he's just preaching to the choir, using claims of moral outrage and non-neocon rulings by judges to scare the troops into proclaiming him a visionary patriot (though even he should be ashamed of his endorsement in the book's intro from illegal drug abuser Rush Limbaugh). All the while, Levin keeps claiming to know exactly what the Constitution's framers were thinking, about all future issues in American history. That requires tragically narrow thinking in itself. [~doomsdayer520~]