Men in Black

by Levin, Mark R.

  In the meantime, we face a liberal cabal of hard-left Democratic senators when it comes to confirming nominees to the Supreme Court. Their voices have grown louder and more shrill following the results of the 2004 election, in which President Bush won a decisive popular and electoral victory and led Republicans to an even larger majority of fifty-five in the Senate. Nevertheless, the Senate Democrats continue to threaten to use the filibuster to block the president’s best nominees.39 The prospect has taken on a new sense of urgency with Chief Justice Rehnquist’s serious illness.

  But the president is not without a potent short-term weapon to beat back the obstructionist minority. As the Constitution makes clear, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Presidents have used their recess appointment power to fill twelve vacancies on the U.S. Supreme Court.40 Indeed, in recent times Chief Justice Earl Warren and Justices William Brennan and Potter Stewart were each recess appointments to the Supreme Court.41 President Bush has used this authority to appoint judges to the U.S. circuit courts of appeal.42 President Clinton did the same.43 If the president were to make a recess appointment to the Supreme Court after January 1, 2005, the new justice would serve until the end of the second session of the new Congress in late 200644—enough time for both the Court’s 2004–05 term and 2005–06 term to be completed. This approach would also place the issue squarely before voters for the 2006 and 2008 Senate elections, and it might cause a few fence-sitting senators to remember Senate Minority Leader Tom Daschle’s fate—rejection by the people of South Dakota, in part for his obstructionist conduct with regard to judges.

  As Thomas Jefferson said, “I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.”45

  Jefferson is right.

  EPILOGUE

  OPPOSING TYRANNY

  Since I was a teenager, I’ve been fascinated with America’s founding fathers. I was fortunate to live just outside Philadelphia. My buddy Eric Christensen and I would frequently take the train to the city to visit Independence Hall, which is now a national park. The history within only a few blocks of that small building is beyond description.

  Independence Hall—specifically, the Pennsylvania Assembly Room—is where the Second Continental Congress met, where the Declaration of Independence was debated and ratified, and where the Articles of Confederation were drafted and ratified. This is also where the Constitutional Convention was held, and where the Constitution was drafted and adopted.

  Later, the Federal Congress met in Congress Hall—adjacent to Independence Hall—from 1790 until 1800, when Philadelphia was the capital of the United States. The Supreme Court also established chambers in Independence Hall for several years. Washington’s second inauguration and John Adams’s only presidential oath took place there as well.

  On each visit, my friend and I roamed these buildings for hours at a time. We examined every desk, quill pen and ink well, and spittoon in the rooms where such great men as George Washington, James Madison, Alexander Hamilton, Benjamin Franklin, and George Mason met to consider the new Constitution. We spent hours listening to tour guides recount the debates. Over the years, each guide had new and unique details to tell us as we grilled them with more and more questions. We walked the grounds around Independence Hall, speculating about the trails the framers might have traveled during breaks in their sessions. And we marveled at the brilliance, foresight, and courage of these men, who risked everything to form the most successful and just experiment in governance in history.

  Around the dinner table and between debates about sports, school, and current events, my family would discuss American history, particularly the nation’s founding. My parents, Jack and Norma, and my brothers, Doug and Rob, were all history buffs. Indeed, most of what I learned about America’s founding occurred outside the formal classroom.

  I have spent a lifetime studying, debating, and thinking about what made our founders so special. What drove these men? What inspired them? What made the government they created so different from those that existed before? The answer is not complicated. We need not research the nation’s libraries to find it. It’s in the Declaration of Independence, our founding document, which states, in part:

  When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to Separation…. We hold these Truths to be self-evident, 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—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. [Emphasis added.]

  This is what makes America different from other nations, past and present. We recognize a greater, higher authority than the government as the source of our rights. When the framers met to rewrite the Articles of Confederation, they decided to replace it with the Constitution. The Constitution wasn’t drafted to conflict with or replace the founding principles in the Declaration. Rather, it was intended to establish a more workable federal governing system.

  During the Constitutional Convention, the framers were struggling constantly with ways to ensure that the federal government they were establishing would not threaten the principles they fought for during the Revolutionary War. They took extraordinary steps to protect those principles by dividing the federal government into three equal branches and assigning them specific, enumerated powers. They would later adopt ten amendments, known as the Bill of Rights. The Ninth Amendment underscored that we, the people, possess unalienable rights which the Constitution, our governing document, was not intended to usurp. The Tenth Amendment highlighted the framers’ intent to limit federal authority to that which was spelled out in the Constitution.

  But look at where we are today. It’s difficult to find any aspect of society where the federal government doesn’t have some role or influence. And the Supreme Court, more than any other branch or entity of government, is the most radical and aggressive practitioner of unrestrained power. The purpose in creating a branch of government not subject to election, and whose members are appointed for life, was to ensure that it would undertake its responsibility to interpret the Constitution and arbitrate disputes in an almost ministerial fashion. There was no expectation the courts would assume the functions of the legislative or executive branches.

  This is exactly the kind of unchecked centralized decision-making—by a mere nine justices—that the framers hoped the Constitution would deter. Their fear that our founding principles would be subjugated to the will of a handful of government officials is a growing reality today.

  Over and over again, dispirited and alarmed callers to my radio show ask me why so many of our nation’s great issues are decided by the federal courts. They question whether elections matter each time the Supreme Court hands down a decision that’s so outside the norm of American life. And they want to know what can be done to regain control of our governmental process.

  I wrote Men in Black to address these concerns and because I believe it’s time for a serious national debate about the role of the judiciary in modern America. I hope this book will encourage it. For too long the courts have grabbed ever more authority over the course of our society, and the elected branches of government at the federal and state levels have been unwilling to do anything about it. If we’re to remain a great republic—where the people “are endowed by their Creator with certain unalienabl
e Rights”—we must not quietly accept the fate the courts have in store for us. We must oppose tyranny, whatever its form.

  AFTERWORD

  BY EDWIN MEESE III

  The Constitution of the United States has been described as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” But the Constitution can fulfill that promise only if it is faithfully interpreted by those responsible for its application to our legal system. When the federal judiciary usurps the authority of the legislative and executive branches, and when judges substitute their personal prejudices and policy preferences for what the Constitution actually says, it creates a potential crisis for our democratic republic. Such a situation has occurred continuously over the past half-century, as this important book, Men in Black, documents.

  Mark Levin served as my chief of staff when I was attorney general of the United States under President Ronald Reagan. He has been my close and loyal friend for twenty years. He’s also one of the most exceptional lawyers I’ve known. Mark’s extensive knowledge of American history, especially the nation’s founding, is second to none, as displayed in this outstanding book.

  Men in Black is one of the finest books on the Constitution and the judiciary I’ve read in a very long time. It combines history, law, and current events in an extremely interesting, insightful, and compelling examination of a dire problem—the intensifying assault on our constitutional process and governmental structure by a relentlessly power-hungry judiciary. Men in Black is a clarion call to those who care about the manner in which we, the people, are governed. This is an issue near and dear to my heart. It was an issue that greatly concerned President Reagan. As attorney general, I spoke repeatedly about the judiciary’s alarming disregard for its limited constitutional role. Unfortunately, the situation has only worsened.

  As the Declaration of Independence states, governments are legitimate only when they represent the consent of the governed. The reason for the original founding of the United States was to gain independence from an oppressive government that was neither selected by nor responsive to those under its authority. Today we face a similar situation in which the “consent of the governed” is frequently frustrated by special interest groups that seek to obtain their policy desires through litigation and decisions of judges, rather than through the elected representatives of the people. They seek such judicial decisions because no legislator (at least none who would like to be reelected) would vote in favor of such proposals.

  Not a single participant at the Constitutional Convention, not a single legislator of the ratifying states, and not a single leading political theorist at the time argued that the judiciary should be the branch of government to hold sway over the others. As Men in Black makes clear, the framers had no intention of trading one form of tyranny for another. They had no intention of creating a government where a mere handful of unelected officials, appointed for life, would dictate policy to Congress, the states, and ultimately the people. The purpose of the judiciary was straightforward: to decide cases and controversies and interpret—narrowly—the Constitution. It was not granted broad authority to sculpt a new constitution, negate legislation at will, or advance political causes through judicial opinions.

  Men in Black describes how federal courts, and the Supreme Court in particular, treads recklessly on virtually every avenue of modern life and governance. Even in areas such as the political process and electing a president, over which the framers gave exclusive authority to Congress and the states, judges and justices have interjected themselves and twisted fundamental constitutional precepts—such as free speech and equal protection—into dangerous weapons.

  Perhaps nothing troubles me more than justices who invoke international law and the decisions of international tribunals in interpreting the Constitution. As Men in Black makes patently clear, foreign laws and foreign courts are not legitimate guideposts for interpreting the Constitution. And when justices rely on them, they’re violating their oaths to uphold our own Constitution.

  Men in Black cogently explores the rationale for the judiciary’s relentless quest for primacy over the other branches. It details how the Supreme Court has become the de facto driving force for social engineering in the twenty-first century, through its convoluted immersion into issues such as same-sex marriage and abortion—areas that should be largely beyond its purview. It matters very little to many of the men and women on the bench today that the will of the people—expressed repeatedly in election after election and poll after poll—rejects the radicalization of our social institutions. The courts increasingly abolish, alter, and substitute the foundational principles of our republic for their own preferences.

  The judiciary was not established to divorce the power and reach of the public sector from the people it is supposed to serve. Nor was it intended to strip the state governments—the entities most responsive to the people, from whom sovereignty flows—of the authority to act as those governments generally choose, as long as they don’t violate the federal powers and rights specifically enumerated in the Constitution.

  James Madison, whom many credit as the “father of the Constitution,” proclaimed that the combination of the judiciary’s powers with those of the executive and legislative was “the very definition of tyranny.”

  Men in Black not only discusses the background and current threat of judicial tyranny, it also points to several innovative approaches for addressing it, including term limits for Supreme Court justices. They’re both serious and thought-provoking.

  It is well past time for a thorough examination of this gathering constitutional crisis. This is a debate we must have, and a topic the American public must begin to understand—lest the country we bequeath to our children barely resemble that which the framers established for us. And there is no better source for understanding and grasping the seriousness of this issue than Men in Black.

  APPENDIX

  The following memoranda show the shocking influence radical left-wing groups hold over Democrats in Congress. These Democrats and their allies on the Left desire to subvert the judicial selection process and thwart the president’s constitutional power to appoint judges.

  All memos were taken from:

  http://fairjudiciary.canpsol.com/cfj—contents/press/judges.pdf

  ACKNOWLEDGMENTS

  Men in Black was nine months in the making. In addition to the honor of running the finest conservative legal foundation in the nation—Landmark Legal Foundation—and hosting a nightly talk radio program on WABC (770 AM) in New York City, I spent endless hours late into the night and on weekends researching and writing this book. My most important responsibilities, however, are as husband and father. But for the love, support, and patience of my wife, Kendall, and our kids, Lauren and Chase—who make me proud and happy every day—I simply could not have undertaken this project. I adore them and am truly blessed.

  My parents, Norma and Jack, have always been my biggest fans. They encouraged me from a young age to pursue my dreams and sacrificed both their time and limited resources to support my numerous journeys. And most of all, by example and word, they instilled in their three boys love of country and family. Whatever character I have I owe to them. I am forever grateful for their unconditional love.

  I also can’t say enough about my older brother, Doug, and my younger brother, Rob. Their friendship, selflessness, and integrity are inspirational. Even though we’ve always stood shoulder-to-shoulder, I’ve always looked up to them. They’re the very best.

  Like most authors, I could not have written Men in Black without the support of an outstanding team of exceptionally talented individuals. David Limbaugh is not only my friend and agent, he’s also a superlative lawyer and author. His guidance and wise counsel throughout this process, as well as his editing assistance, was crucial. I am indebted to him.

  My friend since childhood, Eric Christensen, is an extraordinary person. He has an encyclopedic knowledge of American history, wh
ich he used to help with research and editing. He also was an indispensable sounding board, for which I am extremely thankful.

  Mike O’Neill and Matt Forys are two of the sharpest young lawyers practicing today. Their superb research and legal analysis were essential to the book. I can’t thank them enough for their friendship, hard work, and significant contributions.

  John Richardson, my close confidant and friend from our days together in the Reagan White House and the Meese Justice Department, provided a critical eye and insightful advice in the final stages of writing, making the book much better. He has my gratitude and admiration.

  Pete Hutchison is a lawyer’s lawyer and my right-hand man. His support and friendship made it possible for me to undertake this project. It has been an honor to work with him at Landmark for over a decade.

  The folks at Regnery Publishing were wonderful. After years of prodding, Al Regnery finally convinced me to write Men in Black. Marji Ross, president and publisher, provided the opportunity and allowed me the freedom to write this book in my own way. Paula Decker’s suggestions and attention to detail proved why she’s the top editor in the business. She also pulled together all the loose ends to make the final product. And a special word for Harry Crocker, Regnery’s executive editor. He was instrumental in bringing this book to publication, from beginning to end. He’s an exceptional talent. I am extremely proud of my association with Regnery.