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.

Peter