Wednesday, December 21, 2011

Andrew McCarthy: Gingrich Has It Right On Our 'Imperial' Courts

This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick.

Andrew McCarthy, Gingrich & The Courts, NRO, 21 Dec. 2011

Conservatives have been shaking their fists impotently at the Courts for their judicial activism - their Poliburo like unilateral amendments to the Constitution working fundamental changes to our nation - for the past fifty years. Heretofore, the only solution to the problem was thought to be electing Presidents who will appoint judges grounded in originalism. That has been less than successful. Enter Newt Gingrich, who has completely changed the paradigm on this critical issue. He wants to make a systemic fix that will permanently restore the Constitutional balance between the three branches of our government as such balance was envisioned by the Founders.

Noted lawyer and now columnist at NRO, Andrew McCarthy, reviews Newt Gingrich's plan to redress the balance. Mr. McCarthy first describes the underlying reasons that support Gingrich's focus on this critical issue. First up is a case that I previously described as "a vast expansion of the power of the Court" into the enumerated powers of Congress and the President, opining that it "may turn out to be the most costly decision ever to our nation." That case of judicial activism run amok was Boumediene v. Bush. This from Mr. McCarthy:

In a ruling that defied both logic and centuries of Anglo-American jurisprudence, the Court [in Boumediene] held that aliens captured outside the United States — aliens whose only connection to our body politic was to wage a terrorist war against us — were somehow vested with a constitutional right of access to our courts to challenge their detention.

These rulings are not simply legal outrages. They deny the sovereign power of the American people to enforce their natural right of self-defense — all for the benefit of foreign jihadists who target civilians for mass murder. Nor are they singular excesses. In the last three-quarters of a century, there has been an explosion of juristocracy, of politically unaccountable judges’ nullifying the American people’s democratically enacted choices. The courts have not merely been an advocate for our wartime enemies but a partisan in the culture wars — inventing abortion rights; eroding the bedrock principle of equal protection before the law; cossetting heinous criminals; banning public expressions of religious reverence; protecting the publication of child pornography while curbing political speech; cherry-picking international law as needed to reverse popular self-determination; and so on.

Having enumerated the assaults on our Constitution by the Courts, McCarthy notes that both he and former U.S. Attorney General Michael Mukasey embrace Gringrich's plan to right the Constituional balance, even though neither agrees with all of Gingrich's proposed fixes. This from Mr. McCarthy:

In the real world, there are many steps between the extreme we have now — sheep-like acquiescence to a continuing usurpation of power — and the extreme of making the offending judges disappear.

For example, the political branches may enact laws that deny the courts jurisdiction to hear certain kinds of cases. If the courts ignore these bars (as they did in the detainee cases), the political branches may enact laws reversing those decisions. If the courts persist in their obstinacy, theorizing that they are vested with the final power to divine the Constitution’s meaning (a power found nowhere in the Constitution), the political branches could enact a law, or propose a constitutional amendment, that explicitly empowers them to overturn decisions of the Supreme Court. Or they could simply refuse to enforce court rulings — the courts’ impotence in unilaterally imposing their judgments having been the principal reason Hamilton presumed the judiciary to be “the least dangerous” branch. Congress, moreover, could revisit the dubious tradition that judges can be impeached only for personal corruption, and not for persistently, egregiously overstepping their authority.

That last is a suggestion I raised in a post here. Mr. McCarthy concludes:

Gingrich deserves credit for forcing the vital issue beneath all of this, an issue that every GOP candidate ought to address. The Supreme Court has long purported to be the final authority on what the law is. It was one thing to take that position when the judges had a modest understanding of their role: namely, to resolve cases between litigants, without the grandiosity that would impose those rulings on every American. As Gingrich points out, however, for the last half-century, the Court has regarded itself as a permanent constitutional convention. This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick. So the question for the candidates is, who is the sovereign? Who gets the final word on what the law is? Hint: The first three words of the Constitution are not, “We the Judges . . . ”

Mr. McCarthy's analysis tracks with my own on this issue. Correcting this vast overreach by our Courts over the past half century, restoring the balance to that envisioned by our Founders, is crucial for the future of our nation. That Gingrich has the courage to bring this up - against what will surely be withering attack from the left - is one of the primary reasons why I support him for President.


OBloodyHell said...

>>> they are vested with the final power to divine the Constitution’s meaning (a power found nowhere in the Constitution)

Dude, while I sorta concur with you on some levels, the simple fact is that the courts took this power while most of the Founding Fathers were still alive -- indeed, IIRC, Jefferson was president when the Jay court claimed to have that power.

It's kinda hard to argue the intent of the FFs wasn't 'x' when the first instance of 'x' was during the first 25 years of the nation, and they didn't express substantial dismay over it.

Ergo, while, technically, the power of judicial review isn't granted by the Constitution, it's not a rational argument to claim the FFs did not approve of the idea.

I believe the biggest problem lies not in judicial review itself but in the execution of it.

GW said...

You're right on that, but no one arguing for reform is in any way arguing for stipping the Supreme Court of the power judicial review of Constitutional questions. Indeed, it is that right that sets us apart from the UK, where they have a tyranny of the majority since 1900 when the Parliament claimed themselves supreme, with the exception of Human Rights Laws. Actually, we have the flip side of the problem here, where the Court's have declared themselves supreme and, since 1950, both declared their decisions to have the full force and effect of constitutional amendments while disregarding the meaning and limits of the Constitution. Not good that.

If we can just start limiting the Courts to making good faith efforts at originalism, that would pretty much be the school solution to the problem.

OBloodyHell said...

That's mainly a matter of picking Presidents so as to move the court in that direction... I.e., allow the Dems as little control over the PotUS as possible.

GW said...

I think we will have to agree to disagree on this one. When judges feel free to knowingly and clearly insinuate their policy preferences as Constitutional law in contravention to what the drafters meant, then there is a systemic problem that needs fixing. At a minimum, judges should feel the glare of the other two bodies over their shoulder, and know that they risk impeachment for such blatant acts. It is a century beyond the point where the other two branches should have provided neutral and binding guidance on the Courts to interpret, not amend, the Constitution.

Moreover, the Boumediene decision could actually be more costly to our nation in the long run than was the Dred Scott decision. Nowhere in Article III are the Courts granted any role to play in our national defense. Yet now every single person captured in war is entitled to a habeaus corpus hearing in an article III court.

If they have that right, then pursuant to the VIth Amendment, it will require that the persons capturing them or ordering their capture appear at the hearing to show cause. So do company commander's and platoon leaders have to be pulled off the front line. What if the Sgt. who made the capture is dead. And if no cause is shown, what then, is the person released into our society if we can't return them to a beligirent nation? Do CIA agents have to appear and give testimony on classified material? It is a nightmare - and one that certainly wasn't imagined by the Founders who were in the midst of a war when they were drafting the Constitution.