Newt and His Surprising Liberal Allies
He’s not the only one who thinks there is a huge problem with giving the Supreme Court final say on the Constitution.
Newt Gingrich has turned his guns on the federal judiciary, and a lot of predictable squealing—from both left and right—about the threat to the rule of law has resulted. But Gingrich’s public statements, and a more elaborate position paper posted at his website, deserve serious consideration.
The brouhaha began at the last Republican presidential debate when Gingrich declared that “the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” In a subsequent TV interview, as well as in the position paper, Gingrich argued that when the president and Congress believe that the judiciary has rendered decisions that violate the Constitution, they should be willing to impeach judges, strip them of jurisdiction, haul them before congressional committees, and abolish courts.
The position paper, “Bringing the Courts Back Under the Constitution,” challenges the theory of judicial supremacy, which holds that the courts enjoy the last word on the meaning of the Constitution. As Gingrich correctly points out, the theory of judicial supremacy does not appear in the Constitution and, while the idea has roots in constitutional history, the Supreme Court’s clearest endorsement of it has surprisingly recent vintage in a case called Cooper v. Aaron, decided in 1958. The founders’ writings shed little light on what should happen when the branches disagree about the Constitution. They differed among themselves and in any event did not have a clear understanding of how the government would operate once set in motion. But Thomas Jefferson did clearly reject judicial supremacy and instead advocated departmentalism, the doctrine that each branch enjoys absolute authority to interpret the Constitution within its domain. And judicial supremacy is hard to reconcile with the Madisonian vision of the branches holding themselves in equilibrium through their efforts to increase their power at the expense of the others. Extended to the Supreme Court, this reasoning implies that the Supreme Court will advance spurious constitutional interpretations to enhance its power, and that Congress and the president must be prepared to resist.
This idea might be unsettling but Gingrich has logic on his side. If judges really had the last word, then there is no remedy if they misinterpret the Constitution—aside from constitutional amendment, which is extremely difficult, and in any event futile if judges then misinterpret the amendment. From a Madisonian perspective, while it is entirely predictable that the Supreme Court would claim that its views prevail over those of the other branches, the other branches have no reason to accept this claim.
Read the full story here: Slate Magazine
- The Supreme Court rediscovers federalism just in time for 2012 election. – Slate Magazine (wpvins.wordpress.com)
- Nestor Fantini: Is Gingrich Proposing An Authoritarian Political System? (huffingtonpost.com)
- Extremism in the pursuit of judges – The Washington Post (mbcalyn.com)
- Newt Gingrich Wants To Rule Judicial Branch With An Iron Fist (inquisitr.com)
- Mr. Gingrich’s Attack on the Courts – NYTimes.com (wpvins.wordpress.com)
- Gingrich: The Great Emancipator From History? (jonathanturley.org)
- Can Gingrich rein in ‘judicial activists’? (politico.com)
- What should we make of Newt Gingrich’s latest round of court bashing? (sentencing.typepad.com)
- Gingrich As President Would Ignore Supreme Court Rulings He Opposes And Abolish Courts (alan.com)