Men In Black: An Ideologue in Scholars Clothing

Men in BlackI have just finished reading Men In Black, by Mark Levin.

It is, in a word, rubbish.

This is political agitation disguised as scholarly analysis. And lest you think I am merely offended by his politics: I agree with Levin on many issues. I agree the First Amendment does not permit limitations on campaign spending.I agree the Commerce Clause has been interpreted too broadly. I agree Supreme Court jurisprudence with respect to that Clause and other provisions of the Constitution, including the First Amendment and the Due Process Clause, is inconsistent and at times barely coherent. I agree it was wrong to write substantive economic freedoms out of the Constitution.

I even agree the Constitution does not expressly grant the rights to privacy and sexual freedom. On these issues, however, Levin conceives the Constitution backwards. It does not delineate individual rights, it delineates government powers. The correct question then is not whether the Constitution grants individuals the right to sexual freedom, but where it grants the government power to circumscribe those freedoms.

Government powers are few, narrow and enumerated.

Individual rights are many, broad and unenumerated.

In any event, agreement with Levin’s conclusions does not dictate respect for his analysis—if you can call it that, which I think is being overly generous. Basically, Levin is a conservative, and his goal is to promote a conservative ideology.

That’s fine.

But Levin is disguising his book, and his agenda, as a lesson in constitutional law. That’s where I have a problem. Levin does not provide his readers with any of the tools necessary to come to educated agreement with his conclusions. Instead he gives a soap-box sermon that serves no purpose other than conservative political agitation.

Levin starts with a series of ad hominem attacks on jurists and a one-sided discussion of original intent. Although he devotes an entire chapter to exposing the dirty laundry of various current and former Supreme Court justices, his condemnation of judicial review, a fundamental aspect of our system of checks and balances, is granted little discussion. Levin simply tells you that the framers never intended judicial review and that it is a bad idea. He doesn’t even really bother to explain what it is.

I’ve always assumed that judicial review was an inevitable byproduct of our constitutional framework. The Constitution commits the federal courts to uphold the law. It further dictates that the Constitution trumps all other laws. That seems to me to require the conclusion that when confronted with a case implicating both a statute and the Constitution, if the two are in conflict, a court must refuse to enforce the statute.

Voila. Judicial review.

Maybe I’m wrong. Maybe there is some way to get from “the Court must uphold the laws, and the Constitution is the ultimate law” to something other than judicial review. But, I can’t figure out how to do it myself, and Levin doesn’t offer any explanation.

From that ignominious starting point, Levin takes aim at judicial activism, which he hysterically asserts is “destroying” the United States. Even where Supreme Court decisions have secured freedoms Levin presumably values (such as the right to obtain birth control), he laments the vehicle (i.e., judicial creation of the right to privacy) by which those rights were secured.

This is an important point.

Levin’s unspoken premise is that what the rule of law loses to “judicial activism” (assuming it’s anything) is greater than what is gained by securing individual rights the legislative body would otherwise deny. On its face it’s question resistant to easy resolution. If the Court consistently employs judicial activism for the purpose of securing greater rights to individuals, what is the methodology by which we determine that the cost is too high?

Levin’s central thesis—that the benefits of having the rule of law respected by our courts are worth the disadvantages of, say, having interracial couples arrested and imprisoned and married couples thrown in jail for contraceptive use—is not a balancing test any normal person could conduct.

Levin offers nothing to make the reader better-equipped to do so.

This "Men in Black" was better.
This “Men in Black” was better.

The Supreme Court can do one of three things: 1) it can uphold an act by the political branches as a permissible exercise of an enumerated power; 2) it can declare the act an unconstitutional attempt to exercise an unenumerated power, i.e., to declare some individual freedoms beyond the reach of majority regulation; and, 3) it can require an otherwise permissible exercise of government power to comply with the Equal Protection Clause.

Levin is all over the map on which power he thinks the Court is abusing. Is it the first category, when the Court upholds exercises of political power with which Levin disagrees, like campaign spending limits that contravene the First Amendment? Or is it the second category, when the Court declares certain individual freedoms as beyond majority regulation, like in the birth control and sexual freedom cases? Is if the Court’s incorporation of the Bill of Rights and other substantive due process liberties as limits against state political power?

Levin does not provide a coherent explanation of what Supreme Court powers he wants to circumscribe or how.

He just lets us know which decisions he did not like.

Levin also glaringly fails to consider the ways in which judge-made law actually strengthens the rule of law.

Language is imprecise, and all legislation is bred of compromise, as was the Constitution, and Levin never provides any insight into just whose intent is to be enforced where the language, as drafted, reflects compromise between competing intents and leaves certain questions unanswered.

Contrary to what Mr. Levin wants you to think, judicial legislating did not sneak in through the back door while no one was watching. The British system is a common law system, and its American progeny was designed to be as well.

Faced with the inherent limitations of language and intent, courts have always had to interpret statutory and constitutional language. In so doing, they engage in an age-old process pursuant to which such matters have always been analyzed: Are there any treaties that provide guidance? Is there another statute that uses the same terminology and already has a body of common law defining what that means? Can we make any predictions about how our legislature would refine the language if it undertook to do so? How would a highest state court or U.S. Supreme Court interpret the language? How have other jurisdictions done so? If there is no answer to be found in U.S. common law, are there any lessons to be learned from foreign law? What have been the competing experiences of jurisdictions with divergent approaches to the issues? Does any particular jurisdiction most closely resemble ours in political system or ideology?

Etc.

Because Levin is intent on drawing a caricature of a judiciary out to subversively further a liberal agenda, he never provides his readers with any basis to understand this process. Instead, he uses language like “importation of foreign law” to paint a picture of an out-of-control judiciary scrutinizing the laws of shadowy foreign nations for communistic doctrines to cleverly import.

What actually happens is that, first the trial courts, and then one by one the circuit courts of appeal, and the Supreme Court and the high courts of the states, begin to create a body of law, taken from what they deemed to be the best of all competing approaches, which taken as a whole, will increasingly provide consistent and predictable answers to application of our inherently imprecise written law—always subject to the legislature’s ability to amend.

Simultaneously, well-established rules of stare decisis will assist each court in determining how much value it must place on the decisions that have gone before.

In this way, petitioners, litigants and market actors can make predictions about how courts will rule. In this way, the system becomes increasingly predictable. In this way, the law ensures that people are treated with maximum consistency.

In theory, in a civil law system, there would be no judicial “fleshing-out” of statutory or constitutional language. Each tribunal would face that question anew each time it reviewed a case or controversy, using only two tools: the dictionary definitions of the actual words used in the statute and what can be gleaned of the (possibly conflicting) intents of the various legislators involved in passage of the law. Each applicant and his lawyers would have to make predictions in a vacuum, without resort to the resolutions reached by any prior tribunal.

The result would be inconsistent and unpredictable outcomes.

That this is necessarily the result is evidenced by the fact that the differences between common and civil law systems are more theoretical than practical. As it turns out in practice, even civil code systems, which theoretically prohibit judge-made law, find that informal acceptance of common law stare decisis rules promotes consistency and predictability.

A book genuinely designed to address judicial activism would have given some instruction into how one differentiates between this kind of judge-made law, which was intended by our system (and which a more thoughtful commentator acknowledges shouldn’t even be called judicial activism), that Levin gives the epithet of “judicial activism.”

I’ve noticed that few who tout that phrase can explain what it is or how to identify it. Even fewer can give even one conclusive example of judicial activism with reference to a case citation. That this is so among lay people is not surprising given that even scholars and jurists do not agree on a definition of judicial activism.

Levin might have a coherent definition, at least in his own mind, of what “bad” judicial activism is. He may have some set of criteria for reviewing a decision and determining whether it is the “bad” kind activist. But he doesn’t share it with his readers. If he had, I would have given his arguments full consideration. Instead, Levin implicitly endorses lay use of the term to mean “decisions I don’t like.”

In so doing, he reveals himself for what he really is.

Not a constitutional scholar, but a conservative ideologue.

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