I also want to thank Rush Limbaugh, Ed Meese, and Sean Hannity, all of whom enthusiastically agreed to endorse Men in Black. They’ve been important mentors and have had a profound influence on my life.
The directors of Landmark Legal Foundation have supported me in everything I do. More importantly, their guidance and wise judgment have made Landmark a preeminent legal foundation. I would be remiss in not acknowledging each of them for their efforts in defending individual liberty, the rule of law, and limited government: Lawrence Davenport, William Bradford Reynolds, Gary McDowell, Steve Matthews, John Richardson, and Ed Meese.
And thanks goes to Tim McCarthy, general manager at WABC, and Phil Boyce, program director. They had faith in my ability to host a radio program in the biggest market in America despite my limited broadcasting experience. It paid off. We’re number one in talk radio!
Finally, I salute our founding fathers. Thanks to their vision and sacrifice, we are the freest, strongest, and most prosperous nation on the face of the earth. God bless America.
NOTES
Foreword to the Paperback Edition
1. Kelo v. City of New London, 125 S.Ct. 2655 (2005).
2. U.S. Constitution, Amendment V.
3. Kelo, 125 S.Ct. 2655.
4. Ibid., 2685.
5. Sandra Day O’Connor, Remarks before American Academy of Appellate Lawyers, November 7, 2005. Available at www.appellateacademy.org.
6. Ruth Bader Ginsburg, “A Decent Respect to the Opinions of [Human]kind,” The Value of a Comparative Perspective in Constitutional Adjudication, February 7, 2006. Available at http://www.supremecourtus.gov/publicinfo/speeches/sp_02-07b-06.html.
Preface: Men, Not Gods
1. David Pannick, “Supreme justice warts and all,” The Times, March 16, 1993; Jules Loh, Associated Press, April 19, 1979; Fred Barbash, “Unveiling Ignited Great Debate; Some Founders Went Forward to Power, Others to Poverty,” Washington Post, September 17, 1987; Stephen Labaton, “Bankruptcy Is Better for Petitioners in America,” New York Times, January 23, 1990; Michael Beebe and Dan Herbeck, “Laws for dealing with those failing to pay have long history,” Buffalo News, October 12, 1997.
2. David J. Garrow, “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment,” 67 U. Chi. L. Rev. 995, 998–99 (Fall 2000).
3. Chris Mould, “Special Constitution Package: The original 13 states. South Carolina: A gentleman, a scholar and a madman,” United Press International, August 25, 1987.
4. John M. Broder, “While Congress Is Away, Clinton Toys With Idea of an End Run,” New York Times, November 24, 1997; Garrow, “Mental Decrepitude on the U.S. Supreme Court,” 1000.
5. Richard Brookhiser, Book Review, “Duels, Deals and Down-and-Dirty Politics; Affairs of Honor—National Politics in the New Republic,” Los Angeles Times, December 30, 2001.
6. Garrow, “Mental Decrepitude on the U.S. Supreme Court,” 1002 (citations omitted).
7. Ibid., 1003–04.
8. Ibid., 1007.
9. William H. Rehnquist, The Supreme Court (Knopf: New York, 2001), 98.
10. Morning Edition, transcript of interview with Leon Friedman, NPR, January 3, 1994; Richard D. Friedman, “How to prevent justices from staying too long; Commentary; A committee of family members and colleagues is best suited to tell a Supreme Court member when it is finally time to step down,” Detroit News, October 28, 2003.
11. Earl Raab, “With 2 Jews on court, official anti-Semitism ends,” Jewish Bulletin, May 27, 1994.
12. Ruth Bader Ginsburg, “Justice, Guardian of Liberty,” Forward, May 30, 2003. Available at www.forward.com/issues/2003/03. 05. 30/oped1.html.
13. Andrew L. Kaufman, Cardozo (Cambridge, MA: Harvard University Press, 1998), 480.
14. John Knox, The Forgotten Memoir of John Knox (Dennis J. Hutchinson and David J. Garrow, eds., Chicago: University of Chicago Press, 2000), 51.
15. Roger K. Newman, Hugo Black: A Biography (New York: Pantheon Books, 1994), 604.
16. Ibid., 597.
17. Ibid., 604.
18. Ibid., 620.
19. Jerry Schwartz, “Alger Hiss, Nixon Nemesis, Dead at 92,” Associated Press, November 15, 1996; Sam Tanenhaus, Whittaker Chambers (New York: Random House, 1997), 232–33, 374–75.
20. Paul Craig Roberts and Lawrence M. Stratton, The New Color Line: How Quotas and Privilege Destroy Democracy (Washington, D.C.: Regnery, 1995), 38–43, 48–50.
21. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (New York: Random House, 2003), 427–28.
22. Bill Kauffman, “The Ford Impeachment,” American Enterprise, May 1, 1999.
23. Stephen Chapman, “Octogenarian justices are no asset to the court,” Chicago Tribune, July 4, 1991.
24. Charles Lane, “Following Rehnquist,” Washington Post, October 30, 2004.
25. David G. Savage, “In the Matter of Justice Thomas; Silent, Aloof and Frequently Dogmatic, Clarence Thomas’ Judicial Persona Emerges,” Los Angeles Times, October 9, 1994; “Best and Worst of the Century,” Washingtonian, July 1999; Rehnquist, 198–99.
26. Kauffman, “The Ford Impeachment.”
27. Jon Meacham, “Is Little Rock corrupting Washington? C’mon; political scandals before President Clinton,” Washington Monthly, May 1994.
28. Chapman, “Octogenarian justices are no asset to the court.”
29. Fred Bernstein, “Government Channels,” People, September 27, 1982.
30. Richard Lacayo, “Marshall’s Legacy; A Lawyer Who Changed America,” Time, July 8, 1991.
31. Ibid.
32. Stuart Taylor, Jr., “Marshall Sounds Critical Note on Bicentennial,” New York Times, May 7, 1987.
Chapter One: Radicals in Robes
1. Edwin Meese III, “How Congress Can Rein in the Courts,” Hoover Digest, 1997 No. 4, adapted from IntellectualCapital.com, Volume 2, Issue 16, April 17, 1997, from an article entitled “The Judiciary vs. The Constitution?”
2. Alexander Hamilton said, “There is no liberty if the power of judging be not separated from the legislative and executive powers.” Federalist 78, Federalist Papers (Clinton Rossiter, ed., New York: Penguin Books, 1961).
3. In Federalist 45, James Madison wrote, “the powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Federalist 45, Federalist Papers.
4. John E. Thompson, “What’s the Big Deal? The Unconstitutionality of God in the Pledge of Allegiance,” 38 Harv. C.R.-C.L. L. Rev. 563, Summer 2003, citing John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), and Robert Bork, The Tempting of America: The Usurpation of Law By Politics (1999) 143–46.
5. Ibid., citing Bork, 165–66.
6. Ibid., citing Bork, 1–5, 143–46, 154–55, and Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. Cin. L. Rev. 849, 862–63 (1989)
7. Dred Scott v. Sandford, 60 U.S. 393 (1856).
8. James McPherson, Battle Cry of Freedom (New York: Ballantine Books, 1988), 170–71.
9. Dred Scott, 60 U.S. 420.
10. Abraham Lincoln’s speech on Dred Scott, June 26, 1857. Available at www.teachingamericanhistory.org.
11. McPherson, 171.
12. Dred Scott, 60 U.S. 425–26.
13. Michael McConnell, “Symposium on Interpreting the Ninth Amendment: A Moral Realist Defense of Constitutional Democracy,” 64 Chi.-Kent. L. Rev. 89, 101 (1988).
14. Ibid.
15. Ibid., citing, 60 U.S. 621 (Curtis, J., dissenting).
16. Plessy v. Ferguson, 163 U.S. 537, 539 (1896).
17. U.S. Constitutional Amendment XIV, § 1.
18. Plessy, 163 U.S. 551.
19. Brown v. Board of Education, 347 U.S. 483 (1954). The Supreme Court in Brown reached the right result but applied the wrong analysis. Rather than flatly rejecting Plessy’s faulty reasoning as a Fourteenth Amendment equal protection violation, the Co
urt opened a Pandora’s box of judicial activism moored in sociology and psycho-analysis.
20. Korematsu v. United States, 323 U.S. 214 (1944).
21. U.S. Constitutional Amendment V.
22. Korematsu, 323 U.S. 220.
23. Anthony Kennedy, Speech at the American Bar Association Annual Meeting, August 9, 2003. Available at www.supremecourtus.gov/publicinfo/speeches/sp_08-09-03.html.
24. Gina Holland, “Supreme Court Justice Applauds Judges for Bucking Tough Sentence Guidelines,” Associated Press, March 17, 2004.
25. In 2004, the Supreme Court, in Blakely v. Washington, ruled that the state of Washington’s sentencing guidelines were unconstitutional. Blakely v. Washington, 124 S.Ct. 2531 (2004). This decision sent shock waves throughout the federal criminal justice system because the question as to whether the federal sentencing guidelines were constitutional was not addressed. One federal appellate court, basing its decision on the Supreme Court’s findings, ruled that the federal sentencing guidelines were unconstitutional. Another federal appellate court said the guidelines were constitutional. The Washington Post reported that “Defense attorneys [were] flooding U.S. districts courts with requests for new and reduced sentences.” Dan Eggen and Jerry Markon, “High Court Decision Sows Confusion on Sentencing Rules,” Washington Post, July 13, 2004. In an effort to end the confusion it had wrought, the Supreme Court has stated that it would settle the issue of whether the federal sentencing guidelines are constitutional in its fall 2004 term. Associated Press, August 3, 2004.
26. Deborah L. Rhode, “A Tribute To Justice Thurgood Marshall: Letting the Law Catch Up,” 44 Stan. L. Rev. 1259 (1992). Saundra Torry, “Change and Choice at the American Bar Association Convention,” Washington Post, August 17, 1992. Former Independent Counsel Kenneth Starr cites this quote in his book, First Among Equals (xxvii). In a critique of Starr’s book, Cass Sustein, a former clerk for Justice Marshall, doubts the veracity of such a statement by his former boss. However, two other independent sources (both former law clerks to Justice Marshall) provide confirmation that Justice Marshall made such a statement.
27. Stenberg v. Carhart, 530 U.S. 914 (2000).
28. Brookings Review, January 1, 2000, drawing from the Cardozo Lecture at the Association of the Bar of the City of New York given by Justice Ginsburg on February 11, 1999.
29. Mark R. Levin and Andrew P. Zappia, “Seek and Ye Shall Find—Ginsburg’s Philosophy,” New Jersey Law Journal, July 12, 1993.
30. Lawrence v. Texas, 123 S.Ct. 2472, 2481 (2003).
31. Ibid., at 2483, citing P.G. & J. H. v. United Kingdom, App. No. 00044787/98, P 56 (Eur. Ct. H.R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norrisv. Ireland, 142 Eur. Ct. H. R. (1988).
32. Justice Sandra Day O’Connor, Keynote Address Before the Ninety-Sixth Annual Meeting of the American Society of International Law, 96 Am. Soc’y Int’l L. Proc. 348, 350 (2002).
33. Ibid.
34. Sandra Day O’Connor, The Majesty of the Law (New York: Knopf, 2003).
35. Ibid., 234.
36. Ibid.
37. Hope Yen, “O’Connor Extols Role of International Law,” Associated Press, October 27, 2004.
38. Thompson v. Oklahoma, 487 U.S. 815, 830 (1988).
Chapter Two: Judicial Review: The Counter-Revolution of 1803
1. “Thomas Jefferson’s Reaction to Marbury v. Madison.” Available at www.landmarkcases.org/marbury/jefferson.html.
2. “Delegates at Philadelphia must have known that the state constitutions were regarded as law by the state courts. When the Federal Convention assembled, the nature of a written constitution, emanating from an authority outside the government, had already been made manifest by several judicial decisions. In New Jersey, as early as 1780, the court refused, in the case of Holmes v. Walton, to regard as valid an unconstitutional act of the legislature. Two years later a similar doctrine was laid down in Virginia, and in 1786, the Rhode Island court announced the same principle. Just as the convention was assembling at Philadelphia, the Superior Court of North Carolina asserted that the legislature could not by passing any act “repeal or alter the constitution, because if they could do this, they would at the same instant of time, destroy their own existence as a legislature, and dissolve the government thereby established.” Andrew C. McLaughlin, The Confederation and the Constitution, 1783–1789 (New York: Crowell-Collier Publishing Company, 1962), 169.
3. “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Clinton Rossiter, ed., Federalist 78, Federalist Papers (New York: Penguin Books, 1961).
4. The Constitution of the Commonwealth of Virginia §7, June 12, 1776. The Avalon Project at the Yale University School of Law. Available at www.yale.edu/lawweb/avalon/states/va05.htm.
5. Articles of Confederation. Documents Illustrative of the Formation of the Union of the American States (Washington, D.C.: Government Printing Office, 1927), 27.
6. Variant texts of the Virginia plan presented by Edmund Randolph to the Federal Convention, May 29, 1787, Documents Illustrative of the Formation of the Union of the American States, 953.
7. Ibid., 955.
8. Debates in the Federal Convention of 1787 as reported by James Madison, Documents Illustrative of the Formation of the Union of the American States.
9. Ibid. Madison then inserted in his notes a verbatim account of the language of his amendment. “Every bill which shall have passed the two houses, shall, before it become law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both to be passed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, with either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law.”
10. Debates in the Federal Convention of 1787 as reported by James Madison, Documents Illustrative of the Formation of the Union of the American States.
11. Documents Illustrative of the Formation of the Union of the American States.
12. Madison’s notes, Documents Illustrative of the Formation of the Union of the American States, 551.
13. Ibid.
14. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between Citizens of different States; between Citizens of
the same State claiming Lands under Grants of different States.” U.S. Constitution, Article III § 1. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” U.S. Constitution, Article III § 2. “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Constitution, Article III §1 and §2.
15. Federalist 78.
16. Robert Yates, “Essay No. 11,” Anti-federalist Papers, first published in the New York Journal, March 20, 1788. Available at www.constitution.org.
17. Ibid.
18. Ibid.
19. Robert Yates, “Brutus 15,” Anti-federalist Papers. Available at www.constitution.org.
20. William E. Nelson, Marbury v. Madison, The Origins and Legacy of Judicial Review (Lawrence, KS: University Press of Kansas, 2000), 54.
21. It is somewhat ironic that the Judiciary Act of 1802 led to the Stuart v. Laird decision by the Marshall Court just a few days after the Marbury v. Madison decision was handed down. Stuart v. Laird upheld the right of Congress to abolish the judgeships established under the 1801 act. This decision also implicitly upheld the right of the court to review acts of Congress. At the time, Stuart was considered a major retrenchment by the Marshall Court from the stance it had taken at the time of the Marbury decision. Stuart v. Laird, 5 U.S. 299 (1803).
22. William Peters, A More Perfect Union (New York: Crown Publishers, Inc., 1987), 55.
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