Men in Black: How the Supreme Court Is Destroying America.

• Author: Wick, William A.
• Position: Book Review

MARK Levin's bestselling book, entitled Men in Black." How the Supreme Court Is Destroying America, (1) is a forceful indictment of what Levin identifies as an increasingly "activist" court for amending our national Constitution in the guise of construing it. His book details the history of the current nine black-robed jurists on the U.S. Supreme Court as well as their predecessors.

Mark R. Levin, author of Men in Black, is the head of the legal division of Excellence in Broadcasting and was described by Rush Limbaugh in an Introduction to the book as "simply the best at what he does." (2) Limbaugh went on to say that, "Mark has eaten, breathed and slept the United States Constitution," loving "history, especially American history, and ... passionate about this nation's constitutional heritage." In his Afterword, Edwin Meese salutes Levin (his chief of staff when Meese was attorney general) as "one of the most exceptional lawyers I've known." (3)

The Declaration and the Constitution

The core chapter in Men in Black, Chapter Two, focuses on the U.S. Constitution's enactment in 1788 to replace the Articles of Confederation and the initial ratification of the new Constitution by the thirteen states. The federal Constitution was shaped to fit the concept of the 1776 Declaration of Independence, declaring, as Thomas Jefferson phrased it, "that all Men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are 'Life, Liberty and the Pursuit of Happiness' ... and to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed." (4)

The challenge confronting the delegates to the Constitutional Convention in 1787 was to replace the Articles of Confederation with a national Constitution, establishing a federal government with three co-equal branches, a legislative branch vested in an elected Congress, an executive branch headed by an elected President, and a judicial branch topped by a Supreme Court.

The Constitution established a system of checks and balances to prevent any single branch from overpowering the others. As a result, the enumerated legislative powers, conferred upon Congress under Article I, Section 8, were subject to a presidential veto, which could be overridden only by a super-majority vote of Congress. The President's executive power to nominate and appoint Supreme Court judges was subject to the "advice and consent of the Senate." (5) The judiciary was empowered to remove the President and other executive officers from office upon impeachment and conviction of "treason, bribery and other high crimes and misdemeanors." (6) As a limitation upon all governmental powers, the Tenth Amendment was enacted in 1791, providing that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people." (7)

The state constitution most nearly comparable to the United States Constitution as originally adopted in 1788, was the constitution of the State of Virginia. The "Virginia Plan," which served as the initial outline for the proposed national Constitution, presented at the Constitutional Convention in 1787, contemplated a federal judiciary independent of the other branches of government, on which judges would serve "during good behavior," (i.e., for life.) The federal judiciary was to consist of a "supreme tribunal," plus inferior tribunals to be designated by the legislature. The Virginia Plan proposed, however, to include the federal judiciary as part of a "council of revision," charged with responsibility to approve or reject acts of the national legislature. Though James Madison initially spoke in favor of this proposal, other delegates to the Convention objected, and the idea of judicial interference in the legislative process, even to the extent of ruling on the constitutionality of legislative acts, was dropped. (8)

Instead, the concern, as evidenced by the early debate, was to prevent the judicial branch from being overpowered by the legislative and executive branches. In The Federalist Papers, Alexander Hamilton expressed the view that the judiciary posed no threat to the other branches, if "truly distinct from both the legislature and the executive ... For I agree that there is no liberty, if the power of judging be not separated from the legislative and executive powers." (9)

The Warning

A lonely voice to the contrary was heard from Robert Yates, a New York delegate to the Convention, who, as reported in March 1788, in Essay No. 11 of the Antifederalist papers, warned:

The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul (sic) their adjudications. From this court there is no appeal. (10) The Supreme Court Overturns Unconstitutional Legislation: Marbury v. Madison

Our new-born nation, with its newly-founded Constitution, was no stranger to political turmoil. In February, 1801, three weeks before the end of his term as President, John Adams, a member of the Federalist Party, signed the Judiciary Act of 1801, and subsequently nominated candidates for sixteen new judgeships. The judges who were known as the "midnight judges" were promptly confirmed. Soon thereafter, in March 1802, the Federalists were superseded by Thomas Jefferson's Republican party, which took control of both houses of Congress and, within a month, enacted the Judiciary Act of 1802. The Judiciary Act of 1802 not only repealed the 1801 Act but also abolished John Adams' newly-appointed judges before John Marshall, the Federalist party Secretary of State, could deliver the midnight judges' commissions.

John Marshall was succeeded as Secretary of State by James Madison, who, by direction of new President, Thomas Jefferson, (11) withheld delivery of the midnight judges' commissions, thus spawning the famous case of Marbury v. Madison. This case was a mandamus suit, brought by William Marbury, one of the disappointed judges, seeking a federal court order to compel delivery of his commission as justice of the peace. Marbury had been acting as justice of the peace and hearing cases for about a year without his commission.

Enter John Marshall, a Federalist appointee of John Adams, as Chief Justice. An astute politician, Marshall recognized that if he merely directed new Secretary of State, James Madison, to deliver Marbury's commission, his order would be ignored. He was concerned that such an order might also lead to his impeachment and removal from office as Chief Justice by the Republicans now in control. He believed it was better to be...