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Wednesday, June 29, 2005

Judicial Restraint, Internment, and Slavery

Stephen J. Fortunato Jr. offers this very interesting book review of Men In Black: How the Supreme Court Is Destroying America, by Mark R. Levin. Levin argues principally that the Justices of the Supreme Court have neglected or ignored the letter of the law in an effort to codify their own subjective views as to what the appropriate outcome of a given case should be. In other words, "Good judges 'look to the text of the Constitution and the intent of the framers when deciding a constitutional question.' Activist judges, on the other hand, 'see their role limited only by the boundaries of their imaginations,' and 'they substitute their will for the judgment of deliberative bodies.'"

Interestingly, Levin "points to the infamous decisions of Dred Scott upholding slavery and Korematsu allowing the World War II internment of Japanese-Americans as examples of judicial abuse" (emphasis added). In other words, under the regime favored by Levin, an originalist justice would look only to the original intent of the Framers and actual text of the Constitution, and arrive at opposite conclusions from the court in both Dred Scott (slavery) and Korematsu (internment).

Fortunato Jr. effectively rebuts this argument: "Levin fails to grasp that the majorities in both these cases employed the judicial philosophy he advocates, deferring to a congressional enactment in the former case and in the latter to executive orders issued in the name of national security."

Indeed, Chief Justice Roger B. Taney, who authored the Dred Scott opinion, "was personally opposed to slavery, having freed his own slaves" (contra "Dred Scott case: the Supreme Court decision"). In fact, Reverdy Johnson, who represented the slave owner in Dred Scott, was "personally opposed to slavery." In other words, both Taney and Johnson put aside their own personal opinions regarding slavery and followed only the law as they interpreted it - reaching the now universally recognized unjust result of the case. Thus, it appears as if Levin is overly optimistic about the merits of his judicial philosophy, and has incorrectly assumed that an impartial justice would arrive at legal conclusions that he -- and the rest of society -- now agree with.

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