On a related note, I’ve been meaning to comment on Mark Levin’s book, “Men in Black: How the Supreme Court Is Destroying America. ”
Tom DeLay has been urging reporters to read Levin’s book. I’m a fan of Levin, but there’s a fundamental problem with one of his main arguments.
On page 122, Levin vigorously defends the president’s right to detain enemy combatants during wartime, including U.S. citizens who have not been charged with a crime. He writes:
Nothing in the Constitution gives parity, much less primacy, to the courts over war-related matters. Indeed, as [Clarence] Thomas argues, the Constitution assigns such authority to the president. The Supreme Court somehow believes that courts are more qualified or trustworthy to rule on detentions. But why is that? Why is it assumed that judges are more competent in weighing the rights of individuals against national-security needs? The ingrained bias against the elected branches and their ability to make well-reasoned and just judgments is destructive to the entire notion of representative government. If elected officials cannot make wise decisions about national security, then they cannot be trusted to make decisions at all.
Later on the same page, Levin attacks those who believe that detentions of enemy combatants during wartime should be treated as “garden-variety criminal matters.”
All well and good, but on page 16 of the same book, Levin makes the opposite argument during his discussion of Korematsu v. United States, the landmark 1944 case in which the Supreme Court upheld executive orders allowing the forced evacuation of ethnic Japanese from the West Coast during World War II:
More than 110,000 law-abiding individuals, mostly Japanese Americans and Americans of Japanese ancestry, were removed from their homes on the West Coast, relocated to camps in the interior of the country, and detained without cause. The Fifth Amendment states that ‘no person shall be…deprived of life, liberty, or property without due process of law.’ If this wasn’t a violation of the Fifth Amendment, then what is? Rather than applying the clear language of the Constitution, this activist court simply upheld FDR’s policy.
So in the war against al Qaeda, courts must defer to the president on detentions, but during World War II, when the courts did just that, they were “ignoring the clear language of the Constitution.” In the war against al Qaeda, detentions of U.S. citizens who have not been charged with a crime ought not be treated as “garden-variety criminal matters,” but during World War II the protections of the Fifth Amendment trump the president’s powers as commander-in-chief.
There may be perfectly good reasons for these apparent inconsistencies other than partisanship. The problem with “Men in Black” is that Levin doesn’t bother to explain what they are.