Men in Black
How the Supreme Court
Is Destroying America

by Mark R. Levin

Review by
Robert Wilfred Franson

Regnery: Washington, D.C., 2005
288 pages

October 2011

A Constitution? Or a Court?

What kind of government is it, when officials who are not elected, and hold office for life, and in practice cannot be removed, can and do overrule any laws approved by elected legislatures and any actions of elected executives? And even generate new absolute laws out of thin air?

Well, it isn't a republic.

Mark R. Levin, in Men in Black: How the Supreme Court Is Destroying America, surveys the history of how we have arrived in this trap. This is a lot of territory to cover in an ordinary-length book. Levin sets the tone with a horror sampler of a few of the Justices since the beginning: ethically challenged, Constitutionally indifferent, or flat-out incompetent; perhaps hanging on to office long after they were mentally or physically unfit. My favorite exemplar here of these qualities is Hugo Black, appointed to the Court by Franklin D. Roosevelt in 1937 and held office 34 years; Black was a former member of the Ku Klux Klan.

All Americans should know of several Nineteenth-Century decisions of the Court. Marbury v. Madison (1803) instituted judicial review, a Pandora's box. Among its direct progeny was Dred Scott v. Sandford (1857), in which Chief Justice Roger Taney overruled the Missouri Compromise, stating that slaves could be taken into "free" territories and remain enslaved — effectively eliminating free territories. I believe this ruling, as much as any single act by any individual, led to the Civil War. Plessy v. Ferguson (1896) validated state laws mandating racial segregation, as long as facilities were plausibly "separate but equal".

In the Twentieth Century, this trend sped up enormously during Franklin D. Roosevelt's administration, as the Court was browbeaten and progressively replaced to support obviously unconstitutional New Deal measures. Men in Black concentrates on a handful of areas from about 1960 onward, in which shifting majorities on the Supreme Court felt few qualms about "legislating from the bench" to improve the conduct of all Americans in a variety of ways. From socialism to racism, from citizenship to voting, from abortion to enemy combatants, the Court has intervened. Levin is concise and insightful on a number of the key cases in these areas.

Here's an example, leading into the background of Roe v. Wade (1973):

Today, legalized abortion is the law of the land because the Supreme Court decided in 1973 that its recently created right to privacy also included a new constitutional right to abortion. If you look in the Constitution, however, you will find no general "right to privacy" any more than you will find a right to abortion — and for good reason: It's not there. The framers assumed no general right to privacy because, to state the obvious, criminal and evil acts can be committed in privacy. Criminal codes are full of such examples — from murder to incest to rape and other crimes.
"Death by Privacy"
Men in Black

The history of the Supreme Court is, to say the least, mixed. Mark Levin's survey in Men in Black hits some of the worst abuses of the Constitution, and how these were explained, if not justified. Agree with any or all or none of these "landmark" decisions, every American citizen should ask himself if a nation whose institutions and daily lives can be so reshaped and redirected by unelected officials, remains a republic.


© 2011 Robert Wilfred Franson

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