Sunday, December 18, 2011

An excellent reason not to vote for Newt Gingrich

The man seems intent upon disqualifying himself from serious consideration by anyone who thinks, and values our Constitution.

Ever since Marbury v. Madison (1803), the role of judicial review in US politics has been settled. The courts are entitled to adjudicate whether or not a specific piece of legislation and/or regulation is, or is not, Constitutional. They may not propose their own alternative laws or regulations - the prerogative of making laws is reserved to the legislative branch, and it's the executive branch's job to make regulations that implement those laws. If the legislative or executive branches don't like a ruling by the court system, they're free to appeal it all the way to the Supreme Court. If they lose there, they still have two alternatives. They can create a new law that more narrowly adheres to the Constitution, thereby passing judicial review; or they can amend the Constitution in order to permit that which they want to accomplish. The latter is, of course, a difficult and time-consuming process. It's meant to be!

Enter Mr. Gingrich, the noted legal scholar.

Newt Gingrich is giving fair warning to judges and courts across the country: If he becomes president, the judiciary won’t reign supreme.

The former House Speaker and current Republican presidential front-runner convened a conference call with reporters on Saturday to expand on his call for Congress to subpoena judges or even abolish courts altogether if they make wrong-headed decisions. Those arguments from Gingrich at Thursday's debate in Iowa drew scrutiny and criticism from his rivals.

Far from distancing himself from the issue, however, Gingrich said he was “delighted” that it came up and directed reporters to a 28-page white paper on the judiciary on his website.

Then, in what amounted to a 35-minute seminar on constitutional history, Gingrich argued that the judicial branch has grown far more powerful than the nation’s founders ever intended and said it would be well within the president’s authority as commander in chief to ignore a Supreme Court ruling that he believed was incorrectly decided.

. . .

Gingrich, a former history professor, also stood by his statement that Congress could abolish certain courts altogether, although he clarified that it should be a last resort to counteract judicial overreach.

. . .

When pressed as to whether a president could ignore any court decision he didn’t like, such as if President Obama ignored a ruling overturning his healthcare law, Gingrich said the standard should be “the rule of two of three,” in which the outcome would be determined by whichever side two of the three branches of government were on.

He also indicated it would be rare for a president or Congress to challenge or ignore a court decision, and said in more than 99 percent of cases “you want the judiciary to be independent, you don’t want the Congress or anybody to be able to rewrite cases, per se.”

Another branch would step in, Gingrich said, when a judge or a court makes a decision that is “strikingly at variance with America.”

“I think it’s important to have a discussion: Do we have a balance of power between the three branches, or do we have a judicial supremacy in which they can dictate to the rest of us?” he asked. “I think the country will overwhelmingly conclude you do not want a court which is capable of dictating.”

. . .

Gingrich’s position represents, in effect, a direct challenge to the interpretation of Marbury v. Madison, the seminal 1803 Supreme Court decision that established the principle of judicial review and cemented the high court as the ultimate arbiter of whether congressional or executive acts are constitutional.

There's more at the link.

Mr. Gingrich's statements are so ludicrous that at first, I thought he was trying to be satirical. Unfortunately, he appears to be serious. Let's examine a few of the implications of what he has in mind.

  • 'his call for Congress to subpoena judges or even abolish courts altogether if they make wrong-headed decisions': And just who decides that the decisions were 'wrong-headed'? On what grounds? Do you suppose things like partisan politics might possibly affect the judgment of those making the call?
  • 'the judicial branch has grown far more powerful than the nation’s founders ever intended': I agree that the Founders never predicted Marbury v. Madison; but many of the Founders were still alive when that decision was handed down. I don't recall reading that they promptly convened a Constitutional Convention to rectify their mistake - in other words, they accepted that Marbury v. Madison was a logical consequence of the constitutional arrangements they'd made. If you want to argue otherwise, kindly support and/or defend your position on the basis of what the surviving Founders said and/or did about Marbury v. Madison. After all, isn't that precisely what a strict interpretation of the intent of the Founders requires of you?
  • 'it would be well within the president’s authority as commander in chief to ignore a Supreme Court ruling that he believed was incorrectly decided': Kindly show me anything in the Constitution that supports that position, either explicitly or implicitly. I agree that certain past Presidents have, indeed, ignored Supreme Court rulings, but I don't agree that they had the legal or constitutional right to do so. In other words, their actions were at least as unconstitutional as were (allegedly) the court decisions they opposed.
  • 'Gingrich said the standard should be “the rule of two of three,” in which the outcome would be determined by whichever side two of the three branches of government were on': Bad, bad idea. The legislative branch is riven by partisan politics, and the executive branch (or, at least, the head of that branch, the President, plus the heads of government departments and agencies) is also partisan. If the same party controls both branches of government, Mr. Gingrich's position means that that party's policies might thus be powerful enough to override the judicial branch. Do you really want trades-union-dominated Democrats overriding court decisions affecting union representation, to the disadvantage of corporations? Do you really want fat-cat-dominated Republicans overriding court decisions affecting the rights of workers, to the benefit of directors and investors and the detriment of the 'little people' like you and I? Whose ox gets gored?

I could go on, but I think you get the picture. I've never been a Gingrich fan, thanks to the historical baggage he carries with him. In the light of his comments, as reported above, I can now only consider him a liability to a free society and the rule of law. I'm not sure he's any worse than President Obama in that regard, but he's likely just as bad.



Rev. Paul said...

"I'm not sure he's any worse than President Obama in that regard, but he's likely just as bad."


He's an opportunist of the worst kind, knowing which rhetorical phrase to use at which time, and his original appeal to voters was "Vote for me because I knew Ronald Reagan." So? I had breakfast with Barry Goldwater in '64, but that doesn't make me a candidate for the White House (I was 9 at the time).

He's poison of the most insidious kind.

Joe in PNG said...

Another thing. Obama is kind of a do nothing president... excepting maybe golf vacations and living the high life on the taxpayer's dime. If he had any drive, he could do some real damage.

Newt, however, is an accomplished "sausage maker", to paraphrase Bismark. That he is also a bit of a statist is the scary thing- Newt does have the drive and the skill necessary to really screw things up (just like Nixon).

I'm penciling in "Rufus T. Firefly".

Kerry said...

Did you read his pdf, Better than reading what The Hill says about it, (where no link is provided), I'd suggest reading all fifty-four pages.

Anonymous said...

leaving aside current politics...Marbury v. Madison is an entirely logical development of the founders' philosophy, and farther back the great British legal philosophers of Coke and Blackstone, etc... Judicial Review, which is established by Marbury v. Madison, serves as a check on the ability of the legislative and executive branches to over-ride the Constitution and as a check on the people's ability to over-ride the ideals of rational, democratic debate. The judges should be answerable solely to the legal principles, not those who appointed them or voted them in to office.

This was first argued by one General Varnum, counsel for the defense in a little known 1786 case, Trevett v. Weeden in Rhode Island, one of the first cases were judicial review was established as a legal concept. He argued that the courts, as representatives of the fundamental principles of law, were the protectors of the social contract between the government and the people. Suborn the courts to the legislature or the people and tyranny would follow...

Anonymous said...

The problem is Judges and shysters have so corrupted the legal system, AND Congress has failed again and again to impeach.
Example: The USofA is now a fascist state created when the supreme court ruled that ANY political authority could take your property for ANY purpose.
My congress cretin failed to impeach, despite my begging.
Other Fed Judges have declared a tax to support schools. NO LEGAL Justification he just ordered it.
Who wishes he would win the Lotto and run for Congress

STxRynn said...

I have been an advocate of dissolving the 9th Circuit Court of Appeals for years. Their rulings are more often than not overturned. That is the most liberal, and useless of all Appeals Courts.

Congress could then re-institute it in a different state.

I'd be a much bigger proponent of judicial review if our judges were elected, instead of appointed for life. Or if Congress took seriously the job of impeaching those that overreach and "dictate" to the people.

montieth said...

Hmm, I see where Newt may be coming from. My own complaints seem to match in some ways.

I can best explain it this way. There is one way to change the constitution in the proper sense, that is via Article V.

Judicially there is however another way, just move the goal post through judicial re-interpretation of what something means. This is best described by the decision in Kelo v New London where a private use of land is the same as a public use of land. The takings clause was VERY much meant to be public and only public use, Kelo, via a whole chain of cases going back to railroads and the like, that public use requirement has become entirely mooted.

I could also point to the commerce clause and it's current use to justify ANY federal legislation via the butterfly effect of interstate commerce. A massive Federal Government doing EVERYTHING under the sun is probably not what the founding fathers meant. More so, when they said regulate interstate commerce, I don't think they meant laws that choke the shit out of the economy...

The best way to deal with this....I'm not so sure. It does seem to be something hat would be best handled by the courts but then I don't hold a lot of promise with any segment of the government reigning in it's powers back to where they're supposed to be.

My two cents...