During the Reagan Administration, Mark Levin served as chief of staff to Atty. Gen. Ed Meese. Today, he is president of the Landmark Legal Foundation and host of a top-rated radio talk show on WABC in New York. Regnery Publishing, a sister company of HUMAN EVENTS, has just released his new book, Men in Black: How the Supreme Court Is Destroying America, which is already on the New York Times bestseller list. Levin spoke with HUMAN EVENTS Editor Terence Jeffrey last week about why and how the court should be brought back within the small circle of authority drawn for it by the Constitution. In your book, you make an assertion that might startle many liberals. Citing Dred Scott, Plessy v. Ferguson, and the Korematsu case, you argue that judicial activists have used the Supreme Court to advance evils such as slavery, segregation and racism. LEVIN: When justices depart from the Constitution, they can do enormous damage. In Dred Scott, Congress had passed the Missouri Compromise and decided that the new territories would be free states. The majority on the Supreme Court said, ‘No, Congress didn’t have that power, that slaves were property.’ There is nothing in the Constitution that defines property as slaves. But these were activist justices, and that is what they concluded. The same with Plessy v. Ferguson. The 14th Amendment doesn’t say separate but equal is equal. The justices said separate but equal is equal. In Korematsu, I am one of those who is not willing to let FDR and Earl Warren off the hook, or the court that upheld the internment of 110,000 Japanese-Americans. And Ronald Reagan, who lived through that, was so disgusted that when he became President he vowed to do something about it. This was a case in which they justified uprooting Japanese-Americans, U.S. citizens, from their homes, from where they had grown up and lived, from their jobs, moving them inland in the United States. LEVIN: That’s right. There were accounts of possible infiltration in the Japanese community, but not a single one of those 110,000 did anything wrong. You can take Roe v. Wade. It is an activist decision that has absolutely no constitutional founding. These were decisions made by individuals who just happened to be on the court. They are lawyers with the same imperfections as everybody else, in some cases much worse. The Supreme Court has had some very top-shelf minds and some very low-life types as well–racists and crooks and people who are infirm, as well as brilliant and competent justices. You trace a string of opinions from Poe v. Ullman, through Griswold v. Connecticut, to Roe v. Wade, in which activist justices first talk about a right to privacy in a dissenting case, then in a case involving birth control but not abortion, and then finally use it to create a right to abortion. After that, this doctrine has been used to do a number of other things. It might even be used to justify same-sex marriage at some point– LEVIN: Right. Do modern liberals go into the courts with a specific agenda–like you see in the Ullman-Griswold-Roe sequence–of establishing a legal doctrine they know they cannot win through the legislative process but they think a liberal judge will give to them? LEVIN: That is absolutely the case. In fact, they brag about it. It is a chipping away process. The court builds one decision on top of the other. In fact, justices know exactly what they are doing. When you look at Griswold and a subsequent case in which this ridiculous matter was brought to the Supreme Court over the distribution of contraceptives, Planned Parenthood and the ACLU were trying to figure out just how to get this case in front of the court. There wasn’t a rash of condom prosecution cases going on, just as there isn’t a rash of sodomy prosecution cases going on. The court, out of the thousands and thousands of requests to consider cases, plucks these out of obscurity and runs with them because they are advancing the liberal agenda and expanding their power. I don’t know what the “right to privacy” means. Does “right to privacy” mean that in the privacy of your own bedroom you can kill somebody, or you can rape somebody, or you can conspire to overthrow your government? Of course not. The criminal codes of each state as well as the federal criminal code are full of examples of offenses that you can commit in the privacy of your own home. It is a meaningless statement that simply is used by the court to expand its power. But the “privacy” is to be decided by you and me. We get to decide what our laws should be. We get to decide the policies in this country, not the lawyers on the Supreme Court. Do you see the same process now taking place on the same-sex marriage front, starting with Lawrence v. Texas–which said there is a constitutional right to same-sex sodomy–that we saw on the abortion front, starting with Ullman and then Griswold, that this is a definite agenda designed to create a right to same-sex marriage? LEVIN: I believe it is. If you have a constitutional 14th Amendment right to same-sex sodomy–as I say, the absurdity of the court’s even entertaining this case is beyond belief–then you know they are going to argue that you cannot make that sex act a basis for denying marriage. Otherwise, why consider it all. Sen. [Rick] Santorum [R.-Pa.] was right, when the case came to the court, about the potential for abuse. Justice Scalia reiterated that in his dissent. So the issue of same-sex marriage is now teed up for the court. What’s interesting is, every state legislature that has considered this–I don’t care how liberal the state, whether it is Massachusetts or Hawaii–is trying to figure out how to defend itself against what we all know is coming: A Supreme Court decision, if not upholding same-sex marriage, then building a precedent to uphold it next time. Congress does have the power, does it not, to limit the appellate jurisdiction of the court, except in a few select instances? LEVIN: Yes. Yet, this is viewed as some amazingly right-wing notion. Then the argument is: What about the independence of the court? Well, what about the Constitution? Congress has the power under the Constitution to establish lower courts if it wants to. There is nothing about the lower courts in the Constitution. And also to set the jurisdiction of the courts? LEVIN: To set the jurisdiction of the Supreme Court and the lower courts. So, actually the Constitution authorizes Congress to say: “The Supreme Court of the United States and the lower federal courts shall not review cases involving state abortion laws.” LEVIN: They can do that. They can do a lot more. Or state marriage laws? LEVIN: That’s exactly correct. As a conservative, would you advocate that Congress limit the jurisdiction of the courts in places where the courts have no business? LEVIN: Well, there needs to be re-balancing of the system. The Constitution is fine. The problem is the way we have operated. Judicial review isn’t in the Constitution. It came about in 1803 in Marbury v. Madison. Given that, the Supreme Court and the other courts should be very careful about how they exercise their power. They are not anymore. In fact, I cannot think of any area of life that the court doesn’t intervene in or that the court doesn’t think it can intervene in. I can tell you that the Framers could never have imagined a court this powerful, and never would have authorized the court to do this sort of thing. The Constitution creates a silhouette when it comes to the judiciary. It is up to Congress to paint the picture. And the idea that this silhouette turns out to be more powerful than the other two branches in almost every respect is absurd.
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