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Tuesday, December 20, 2011

In Defense Of Gingrich

The noble Brutus hath told you Caesar was ambitious: If it were so, it was a grievous fault.

 - Mark Antony, Julius Caesar (Act III, Scene 2)


Much has been made of Newt's doubling down on his dictatorial desires vis the Judiciary.  It is certainly disturbing, as is most of his philosophy and "historical" justifications, but I did want to point out that on a few things he is indeed correct:

Gingrich: The Federalist Papers say specifically the weakest of the three branches is the judiciary. Jefferson abolishes 18 out of 35 federal judges.

Schieffer: They'd just been created, though.

Gingrich: They'd just been created and they'd been appointed. And he abolishes them. Over half of all the judges. Jackson says of the court, they think the bank of the United States is constitutional, I don't think it's constitutional. Their opinion doesn't matter to me. I'm the president, they're over the judiciary, he vetoes it. Lincoln spends part of his first inaugural because people tend to forget, the Supreme Court in Dred Scott, ruled that slavery extended to the whole country. And Lincoln said very specifically, that's the law of the case that is not the law of the land. Nine people cannot create the law of the land or you have eliminated our freedom as a people.


Schieffer: Alright here's another one, this is now. Next year the Supreme Court is going to take up Obama's healthcare proposal. What if they throw it out? Can President Obama then say I'm sorry boys [ed note: I believe there is a non-boy cadre on SCOTUS that is numbered significantly greater than zero], I'm just going to go ahead and implement it. Could he do that?

Gingrich: The key question is, what would the congress then do? Because there are three branches...

First, the low hanging fruit: Mr History is absolutely right that there are three branches of government; good of him to notice.  He is also spot on that Hamilton observed in Federalist 78 that "the judiciary is beyond comparison the weakest of the three departments of power."

The other stuff in the middle?  Well, he continues to be right so far as he goes.

During the Jefferson administration, a bunch of new Federal judgeships that had been created in the waning days of Federalist power were in fact abolished.  Score another for Newt.

Jefferson by himself, of course, didn't do that since Article III gives Congress power to organize the Judiciary.  Oh, and it was 16 judges, not 18, as the number of circuit courts was expanded from 3 to 6, all but one of them were given a trio of judges.  I guess I should also note that it wasn't because the courts did anything bad, but the incoming Democrats didn't want a bunch of Federalists around with life tenure (sounds familiar).

Jackson totally disagreed with SCOTUS about the Second Bank and when its charter was up for renewal vetoed Congress' bill with great vengeance and furious anger.  What's weird is Newt kinda glosses over the 13 years that the Bank operated between the Court's opinion in McCulloch (1819) and the early request for reauthorization (1832).  And, you know, Jackson didn't veto the ruling, as it were--Marshall and crew just said the bank was permissible and states couldn't mess with it, not that it was required by the Constitution--nor had any effective say until Congress passed something years later.  Not really much of a burn.

As for Dred Scott, I will charitably allow that the opinion of the Court--if its logic was carried fully to conclusion, which it had not yet--was that slavery extended to the whole country.  That, even though the Court decided it had no jurisdiction in the first place.  Perhaps he's conflating with Lemmon v. New York?

Regardless, I'm not so sure I read Lincoln's First Inaugural completely the same way Newt does (and some others do).  He cites this passage in a white paper:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. 

Opines Gingrich: For Lincoln, it was not just slavery at stake but American self-government, for if the Court became the last word in American politics, then it would mean a surrender of self-government.

Yet he seems to miss the very next sentence:

Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

So Lincoln wasn't assailing the Court as an arbiter of constitutionality, and when considered along with his discussion of overruling, it doesn't strike me that he was sounding alarms about "activist judges" so much as noting that the political process never stops.  Indeed, that's completely consistent with Lincoln's expressed respect for the Constitution and the Judiciary's role therein.  As he said after the ruling:

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

One way to overcome a decision is for the Court rule differently in a subsequent case (I'm sure that's fine with Newt when the later ruling affirms his beliefs, as opposed to say...a Brown contrary to Plessy), as Lincoln reasonably observes.  But still, he's right that Lincoln and the Republican Congress did view the meat of Dred Scott as obiter dictum, in essence saying the Taney Court merely made a passing comment about the constitutionality of the MIssouri Compromise and did not lay down the law.  So during the Civil War Lincoln's State Department issued a passport to an African-American (1861) and Congress forbade slavery in Federal territories (1862).

Interestingly enough, in the latter case:

Opponents of the measure raised various objections...but no one mentioned the Dred Scott decision throughout the debate.

An odd omission if Dred Scott really were the law of the land. But no matter, Congress can always try to pass new legislation that it deems to meet constitutional muster, as it did. 

And after a mere, bloody few years of constitutional crisis, the issue was finally laid to rest with the Reconstruction Amendments.  A significant, violent conflict notwithstanding, the process played out as designed.  So I'm not quite sure Gingrich is suggesting anything really extraordinary.

Where I think he goes off the rails is when he plays the "overreach" dog whistle.  The Courts have an established power of Judicial Review.  I know the Right (and Jefferson) have always hated Marbury, but them's the breaks.  As SCOTUS noted after the Jefferson Era's abolishment of circuit judgeships (a week after Marbury):

[I]t is sufficient to observe, that practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.

Or if Newt would prefer, here's Scalia:

A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality.

So there you have it: after two centuries of accepted practice, Judicial Review is a done deal.

That's not to say Congress and Presidents can't also be judges of constitutionality--indeed, they ought to consider the law of the land when engaged in their constitutional functions.  Really, we all of us are, and our understanding of the Constitution should inform our decisions as citizens, from casting a ballot to deciding cases as juries.

And if we're all concerned about defending the Constitution, we really should do our utmost to defend the Judiciary.  As Hamilton continued in Federalist 78: 

[The Judicial Branch] can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."


This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

So when Gingrich claims in his white paper:

The Founding Fathers felt strongly about limiting the power of judges because they had suffered under tyrannical and dictatorial British judges.

In fact, reforming the judiciary, along with “no taxation without representation”, was among the American colonists’ principal complaints about the British Empire prior to the revolution. A number of the grievances in the Declaration of Independence relate to judges dictatorial and illegal behavior.

He is right that the Declaration identified among George III's crimes his refusal to allow locally-organized courtscreating military courts without colonial approval, and making courts without any judicial independences:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

So Gingrich might want to, uh...reconsider his call for a more docile Judiciary beholden to the Executive and Legislative branches, at least based on the historical record he cites.  To make a long story a little longer, Gingrich is correct in much of what he said, just not so correct as he thinks.


December 20, 2011 | Permalink


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