Culture » June 29, 2005

Origin of the Specious

By 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.

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• Reader Comments

  I don’t think it is any surprise that someone on the right has chosen to deify a document and their own interpretations of it, rather than learning the intent of the authors and using the document to further that intent.

  Take, for example, the Ten Commandments. Clearly this is a case of deification, of holding the words above the meaning. If right-leaning judges truly believed these words that they want to hang above their benches, then there would be no death penalty, no state sanctioned divorce, and no desire to make false-gods out of documents!

  Yet, we know that is not the case, and we know from history that any culture that clings too tightly to dogma eventually becomes a tyranny, blind and unyeilding. Even the most ardent right-winger knows that the framers never wanted that to happen.

  Posted by mn on Jun 29, 2005 at 7:38 AM

  The Constitution should be interpreted strictly according to the will of the Framers?  Why?

  Posted by Matthew K. on Jun 29, 2005 at 1:05 PM

  Matt,

  It’s the “intent” of the framers not the will.  Anyway, what was the framer’s intent when it comes to stem cell research?

  As an aside, does it occur to anyone that the underlying cause of being a conservative may be the same as the underlying cause of being a pedophile, spouse beater, child abuser.  We’ve all heard the theory that these people do what was done to them by their parents, relatives, etc.  It just seems to me that some similar catastrophic event(s) in childhood is a necessary underlying cause of becoming a conservative. 

  For example, anyone who has listen to right-wing wacko Michael Savage (pseudonym), knows from his obsessive diatribes about his father that his father abused him as a child.  And as can plainly be seen, he has turned out to be an extremely hostile, hypocritical (gay man who hates gays), and pathological liar.  Who knows what else he may have done.

  So, if conservatism is a psychological disease state, perhaps some kind of therapy could treat it.

  Posted by Lefty on Jun 29, 2005 at 3:38 PM

  Matt, the Constitution should be interpreted strictly to prevent judges from “interpreting” the Constitution to say whatever they want it to say.  It’s the job of elected legislators to decide what policies are best for the people, and unelected judges shouldn’t be able to second-guess the will of the voters unless the Constitution clearly calls for it.  It’s antidemocratic.

  Posted by Ted on Jun 29, 2005 at 5:44 PM

  It is the job of judges to prevent elected legislators from depriving minorities of their rights.  If that means knocking down unjust laws, so be it.  If it means requiring necessary policies, so be it.  Anything else would be undemocratic.

  Posted by Matthew K. on Jun 29, 2005 at 6:02 PM

• extended discussion >>>Continued...

  Discussions with more than 5 comments are continued on our special discussion page to encourage continuity and ease of use. There are currently 26 posts.

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