'some of them have been racists'

J$P Instant Transcript! Mark Levin discusses the Supreme Court on Fox & Friends.

From Fox & Friends, February 8 2005:

JUDGE ANDREW NAPOLITANO [FOX NEWS]: Our next guest says the Supreme Court--the Supreme Court--is undermining the constitution of the United States.

E.D. HILL [FOX NEWS]: He wrote a book sort of about that too. Joining us is Mark Levin, he's the author of Men in Black: How the Supreme Court Is Destroying America. How can they destroy it?

MARK LEVIN [AUTHOR]: I was going to call it Gone with the Wind, by the way.


NAPOLITANO: A little problem with copyright there.

HILL: How can they be destroying it? They're supposed to be interpreting our law for the good of our country.

LEVIN: Well the problem is, and the Judge might agree on some of this I think, is that there are areas where the court really isn't supposed to have as much authority as it claims. I can't think of a lot of limits on the Supreme Court today. And when you look at the constitution, the emphasis is on the representative branches. And I understand the concept of judicial review, that the court ought to have a review over what the elected branches are doing. But you know it did have judicial review three times in our history that was disastrous: Dredd Scott, when it ruled that slaves in free territories were property; segregation, in Plessy; and internment of Japanese Americans in 1944. The court's not perfect; these are flawed human beings. And I happen to like representative government more than anything else.

STEVE DOOCY [FOX NEWS]: You just mentioned flawed human beings. In the beginning of your book you talk about how a bunch of them have been nuts.

LEVIN: Some of them have been very nuts. Some of them have been brilliant. Some of them have had strokes and lost their memory. Some of them have been racists. Some of them have been anti-semitic. The point is, this is not an Olympian council, where these people are imbued with brilliance--other than the New Jersey Superior.

NAPOLITANO: [laughs] You're so kind. Tell us how we got from a constitution with 18 specific, delineated, precise, enumerated powers, to a federal government that can control everything from speed limits to the size of toilet bowls to the amount of lobsters you can catch.

LEVIN: Well this is a bugaboo with you and me, and that's the commerce clause of the constitution. It's just a little phrase. The whole purpose of the constitution really, the reason they went and met in Philadelphia originally and scrapped the articles, was to promote trade, because the states had all these barriers. Well the commerce clause, when FDR tried to pack the court, the court said no, you can't do all these things you want to do under the federal constitution. He tried to pack the court; he eventually replaced 8 of the 9 justices. And now the commerce clause means, basically, anything the federal government wants to regulate, including the flow of water through your toilet, it's going to regulate.

DOOCY: Man. In chapter two, I was rereading last night, and you asked a question--

LEVIN: Come on, you weren't reading.

DOOCY: I did.

NAPOLITANO: I gave him a quiz at 5:30 this morning, Mark.

DOOCY: Here's a question, Mark, from your book. From which section of the constitution were the courts granted the authority to overrule Congress and the President? And the answer is?

LEVIN: None.

DOOCY: None.

NAPOLITANO: Nowhere. Nowhere. John Marshall, the so-called great Chief Justice, just made up the concept of judicial review, that the courts could review and invalidate the behavior of the other two branches.

HILL: What about looking at them in terms of the safety and security of every single one of us in this country? The President declares a war, the President says our troops are going to go here, fight these people, they're our enemy. The Supreme Court stepped in, in a way, this time. And has that been detrimental?

LEVIN: This is where you [Napolitano] and I will disagree. I think it's been a disaster. For our entire history the Supreme Court--

HILL: This is giving the enemy combatants due process.

LEVIN: Yes, due process rights. Now what the Supreme Court said last summer is they have due process, they get to come to court. We're not exactly sure how to fill in the rest of the blanks. So we have two federal judges in Washington DC that filled them in differently. One said great, you get nothing. Another one said great, you get everything a US citizen gets.

NAPOLITANO: How do you account for the fact that, in this very case, which the court ruled 8-1 that the President can't just declare somebody an enemy combatant and throw away the key--

LEVIN: Well that's Hamdi, that's the US citizen case.

NAPOLITANO: Right. But how do you account for the fact that the most pro civil liberties opinion was written by our good friend, the most conservative member of the court, Justice Scalia?

LEVIN: Well let me say this. That deals with a US citizen who is a detainee. I disagree with the justice on this, as did the 4th circuit, so people have differences of opinion. I'm talking about these foreign illegal combatants who are caught on the battlefield, who are Al Qaeda and Taliban. The notion that they have due process rights like US citizens is absurd. What are we going to do now? We have 100,000 POWs. Are they all going to get lawyers? Are they all going to be able to call witnesses? They all going to be arraigned? What courts are going to handle this? It is absolutely nuts. The issue in my book is, who gets to decide these things? Why are these 9 lawyers, or in the case of Rasul 6 lawyers, controlling what we do? Where is their authority? In my opinion, they don't have any authority.

DOOCY: Read all about in the Men in Black--Will Smith's got to be delighted with that--How the Supreme Court Is Destroying America. Mark Levin, as well we listen to him on WABC each and every weeknight.

LEVIN: Thank you.

NAPOLITANO: And he's great.

DOOCY: Good show.

LEVIN: Appreciate it; you guys are great.

DOOCY: Mark, thank you.

posted: Tue - February 8, 2005 at 02:45 PM       j$p  send