Gingrich's Attempt To Redress Judicial Activism

Why does the Supreme Court have the power to decide whether a law is constitutional? Because they arrogated themselves that power near two decades after the signing of the Constitution, in the case of Marbury v . Madison. Article III of the Constitution is silent on any such power.

Why is the Supreme Court's say on the constitutionality of any particular law final, subject only to change by a Constitutional amendment? Again, because the Supreme Court said so, this time in the 1958 case of Cooper v. Aaron. That case represented a vast expansion of the power of the Court first articulated Marbury.

Newt Gingrich raises all of this as a major plank in his campaign for the President. And for all the impotent wailing and gnashing of teeth by conservatives on this issue over the past half century, Gingrich is the first person to come up with a comprehensive plan to restore the Constitutional balance of powers that existed at the time the framers drafted our Constitution. Gingrich's position paper on this issue can be found here.  He is under attack from all sides for merely raising the issue, let alone the boldness of his plan.  The plan he proposes is indeed a "first draft," and some of his proposals will likely not work.  But that in no way means his plan as a whole is unwarranted, nor that all of his ideas are unworkable.

As a threshold matter, I've been pounding on the issue of our judiciary as an unelected politburo for years.  I am in complete agreement with Newt on this issue.  To quote from my post, The Supreme Court: Originalism, Judicial Activism, & America's Future:

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. In the last week, we have been treated to the best – an originalist Second Amendment decision - and worst – an activist habeas corpus decision - of the Supreme Court by Judges applying those two schools of thought.

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplacable tool to remake society.

The Goracle did a good job of describing the "living Constitution" theory in his 2000 election campaign, as well as demonstating the left's total embrace of judicial activism:

I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.

That is scary. That is pure judicial activism of the type which:

- came within one vote yesterday of holding that the Second Amendment does not provide an individual right to carry arms, thus giving the government the power to disarm all Americans . . .

- now allows government to take your private property and give it to another private party for their own purpose, even though the plain language of the 5th Amendment clearly forbids it as unconstitutional.

- now holds that cherry picked foreign law can be used to interpret the U.S. Constitution, thus allowing our modern activists to arrive at any policy decision they so desire and then to turn it into Constitutional law, irrespective of how far removed it may be from the original meaning of the Constitution.

- in a vast expansion of the power of the Court, and in what may turn out to be the most costly decision ever to our nation, the activist wing of the Supreme Court twisted precedent out of recognition to arrive at a decision that has inserted the Judicial Branch into the national security and defense roles of our President and Congress. The activist wing of the Supreme Court has taken for itself powers clearly authorized only to the other branches by the plain language of the Constitution. As law professor Kenneth Anderson, cogently opined, "the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work."

- have greatly limited the use of the death penalty and the means by which states can apply it. While some of these restrictions are valid as a means of insuring due process, others are examples of pure policy decisions by the Court.

- have created numerous rights out of whole cloth, taking social policy, such as whether to allow abortions and under what circumstance, out of the hands of the people. In creating these new rights, the Court is making Constitutional law of their personal policy preferences. (Note here that originalists hold questions such as abortion to be outside the text of the Constitution and thus wholly states rights issues, beyond the scope of the Supreme Court's jurisdiction and beyond the competence of the federal government to regulate.)

- have read into the anti-establishment clause a "wall between church and state" and used that theory to dismember any hint of religion in the pubic square, thus promoting, whether intentionally or in the breech, the religion of the left - radical secularism.

- overturned the votes of over 7 million Californians who said gay marriage should not be made legal within that state.  This was the decision of an unelected gay judge who held that gay marriage is a Constitutional right of all Americans under the Equal Protection clause.   At the time the Equal Protection clause was written, virtually every state in the Union had laws against homosexuality. There is no question then that homosexuality was not intended to be within the sphere of “equal protection under the laws.” Thus this is an issue of social policy left solely to the province of the people to decide.

There is no greater internal threat to our nation than an activist Supreme Court acting without respect for democracy and unconstrained by the original intent of the founders. . . .

When Newt says that the Courts were meant to be the least powerful branch of government, he is correct. And when Newt says that the Founders never envisioned a Supreme Court with the power it wields today - citing to the writings of Alexander Hamilton and James Madison in the Federalist Papers - he is also correct. Thus have the Courts become a politburo.

The Constitution provides for two means of amendment. Neither of those means include the unilateral amendment of the Constitution by Judges imposing their own view of what the law should be.

Newt's proposals to redress that balance are far reaching. The problem of course is how to limit the power and reach of the Court without making of the judiciary a less equal and wholly political body (though arguably it is a wholly political body today). We do not want to create of ourselves a new UK, where the Courts are neutered and the Parliament operates as a tyranny of the majority. It is a Gordian knot that Newt seeks to untie.

Hot Air's Jazz Shaw touches on this problem in his post, Newt's War On The Courts. The post, and the citations, are full of misstatements by Jazz as well as the people to whom he cites. In regard's to Gingrich's plan to impeach judges that depart from the Constitution in their decisions, there is much huffing and puffing that Article III of the Constitution provides that federal judges "serve for life." They are reading a different article III than I am. Specifically, Art. III, Sec. I provides "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . ." The question than becomes, what defines "good behavior." Clearly, the failure to adhere to the laws of our nation would be a violation of good behavior. That is what Gingrich is getting at, but unfortunately he does not bring clarity to his standards, thus leaving himself open to charges that impeachment would be used as a tool to punish judges merely for coming to a conclusion that he does not like. That is certainly not what Newt is arguing for in his position paper.

Jazz cites approvingly to an attorney blogging at OTB, Doug Mataconis, who opines:

In his position paper, Gingrich engages in a wholesale attack on the structure of American government as established in the Constitution, and as it has existed for the past two centuries, proposing to replace it with a system where majorities are given even more control over the levers of state while minorities are increasingly denied access to the one branch of government most likely to protect them from a rapacious and oppressive majority. It is an attack on the Constitution, on the Rule Of Law, and on individual liberty. The fact that it received so many cheers last night is very disturbing.

To call that analysis overheated, one sided and, indeed, superficial would be overly kind. As I've enumerated above, a Supreme Court that acts as a super-legislature presents a clear and present danger to our nation. What Shaw and Mataconis are arguing for is preservation of a system already broken and being misused to work fundamental change to our Constituion. Newt isn't advocating destruction, he is advocating repair. Nor is he advocating subjective control over the Courts, he is demanding fidelity to the Constitution as it was written and approved.

What Gingrich needs to advocate is passage of a law limiting the scope of a Court's use of authority to decide future cases, on one hand requiring that all Courts give the highest possible priority to the original intent of the drafters, while on the other hand proscribing use of "evolving standards" of society and foreign law to decide cases of Constitutional law. Now, can activist judges get around the above standards with a bit of creativity. Sure, but it would make it much harder and the devices they use would be far more obvious, thus opening themselves up to punitive measures in cases where the failure to adhere to published standards is clear and convincing. I would note that such a law would require careful analysis of the 200 plus years of existing precedent to see where wholesale application of originalism would throw our nation into chaos, such as in a total return to the original meaning of the Commerce Clause. That is an issue that would have to handled with careful guidance from the legislature. That said, such a law would go a long way to furthering Gingrich's effort to reestablish the Constitutional balance with the Courts as a co-equal branch of government rather than an extra-constitutional super-legislature.

Newt skips advocating for such a law among his suggested fixes, which is a gaping omission. He does, however, favor laws that would limit the jurisdiction of Federal Courts - something which has a long history and would go a long way to limiting the Court's ability to impose new social policy.

Newt is drawing a tremendous amount of fire for many of his other suggested fixes, such as abolishing entire Courts and using the power of the purse to prevent enforcement of decisions. These do indeed seem actions fraught with problems of their own. But this is a first draft.

The hue and cry being raised against Newt's plans seem to be largely an attack on taking any action to redress the Constitutional balance. But Newt has this exactly right. Something must be done to end our Court's tyrannical reign. It does threaten the very fabric of our society.

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