The American Spectator : President Gingrich Would Curtail Judicial Power

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President Gingrich Would Curtail Judicial Power

By Kevin Mooney on 7.13.11 @ 6:07AM

The federal judiciary has become too powerful. Thomas Jefferson would be displeased.

“Radical secularists” who have worked to undermine First Amendment rights and coerce their own policy preferences onto the public can be brought to heel by abolishing their positions in the judiciary, former House Speaker Newt Gingrich has told audience members in recent campaign appearances. His proposal is built around legislation President Thomas Jefferson and Secretary of State James Madison advanced in 1802 to reassert the authority of the elected government agencies, Gingrich explained in an interview.

Although it is very evident from the Federalist Papers and from Jefferson’s letters that the founders viewed the judiciary as the “weakest of the three branches,” too many of today’s elected officials have accommodated activist court rulings without offering a forceful response, Gingrich observed. By asserting that the American people have a right to challenge the judiciary through their elected representatives, the Georgia Republican anticipates that he will offend prevailing opinion in the media and academia. But, at the same time, the judiciary’s repeated attacks on religious freedom could help stir a larger debate about the ideals of the founding period, he said.

While addressing the Republican Leadership Conference (RLC) in New Orleans earlier this month, Gingrich discussed a recent federal court decision that prohibited public prayer at a high school graduation ceremony in Texas. In his ruling, U.S. District Judge Fred Biery ordered the Medina Valley Independent School District to prevent the school’s valedictorian from including prayer as part of her graduation speech.

This decision puts Judge Biery at odds with 90 percent of Americans who support school prayer, Gingrich told audience members. Biery’s order was so extreme that he actually threatened students and graduates with incarceration if they simply used the word “prayer”, Gingrich pointed out in his talk.

“If you read his ruling, it is so outrageously dictatorial and anti-religious that he [Biery] clearly does not understand America,” Gingrich said. “We don’t need judges who don’t understand America…We need to reset the judiciary, explain to them the limits of the American Constitution and prove to them that judges appointed for life cannot be dictators and they cannot threaten our children with jail for saying the word ‘prayer.’”

Gingrich’s answer to Judge Biery is the Judicial Reform Act of 1802, which eliminated 18 out of 35 federal judgeships. If Republicans pick up enough seats in the House and Senate next year, it will be possible to introduce legislation modeled on what Jefferson and Madison offered up in response to judicial overreach.

“As a modest first step toward reining in the anti-religious bigotry on the bench, Judge Biery’s office should be abolished by Congress,” Gingrich said. “The American people would be better off without a judge whose anti-religious extremism compels him to ban a high school valedictorian for just saying the word ‘prayer.’”

Gingrich would also eliminate the Ninth U.S. Circuit Court of Appeals based in California, which has a long history of activist rulings. The court, for example, ruled in 2002 that the “under God” phrase in the Pledge of Allegiance was unconstitutional. The U.S. Supreme Court later reversed the decision.

“I’m not nearly as radical as Jefferson or Madison,” Gingrich said. “I would not eliminate half of the federal judgeships. But there’s no question that this type of legislation is constitutionally viable and we have strong historical precedence. Once people see this, it will help get the right kind of arguments into circulation. Judges are within the Constitution and not above it. This concept of judicial supremacy, favored by the elites, is absurd and entirely out of step with what the founders had in mind.”

Gingrich’s latest book A Nation Like No Other: Why American Exceptionalism Matters traces the federal judiciary’s unconstitutional power grabs back to the latter half of the 20^th century. The Warren Court’s declaration of judicial supremacy in the 1958 Cooper v. Aaron case, which was followed up by the high court’s ruling against school prayer in the 1962 Engel v. Vitale case, marked critical turning points.

Although the founders explicitly banned the establishment of an official religion, unelected elites are using the judiciary as a conduit for replacing Judeo-Christian traditions with their own secular worldview, Gingrich warns. In his book, he describes some motivating influences that infuse judicial activism.

“Radical secularists resent religion for many historical, philosophical, and psychological reasons,” Gingrich tells readers. “But in light of their quest to impose their will upon the judiciary, the federal government, and ultimately the American people, they primarily begrudge religion for one reason: because faith reminds us of the need for humility, and of the limits and dangers of men who wield power.”

Although secularists sometimes lay claim to Thomas Jefferson, they have in fact misrepresented his views and they deliberately omit the critical role he played in advancing religious freedom, Gingrich said. For example, the “wall of separation” that Jefferson describes in his famous letter to the Danbury Baptists in 1802 was not written to preclude religious expression in public settings.

“He was trying to restrain government from corrupting religion,” Gingrich said. “He wasn’t restraining religion from existing in public. No modern elitist will tell you this but two days after he wrote that letter Jefferson rode up to the Capitol and went to church in the House chamber.” Moreover, three of the four quotes on the wall in the Jefferson Memorial are references to God, Gingrich continued.

“The idea that Jefferson would have been for Judge Biery is an absurdity,” he said.

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About the Author

Kevin Mooney is an investigative reporter with free market think tanks associated with the Franklin Center for Government and Public Integrity. He has also written for the Daily Caller, the Washington Times, the Washington Examiner, NetRightDaily.com and NewsBusters.

Letter to the Editor View all comments (40) | Leave a comment Leave a comment

Gary| 7.13.11 @ 7:00AM

Like so many establishment Republicans, Gingrich can't be trusted. He'll betray America's trust at the worst possible time. But, he is a great educator. He should stick with that and help conservative candidates from the sidelines.

Melvin| 7.13.11 @ 8:06AM

This would be a good plan overall. But in order for this to be successful the Party must be unified, for the Conservative Candidate to be chosen and to attend the Conservative Prep School if you will.
This Conservative Prep School would prepare the candidate for their upcoming elections and to focus their Conservative message.
But something must be done about the Progressive Republicans whose political ideology resembles more of the Democrat than a Conservative.

Alan Brooks| 7.13.11 @ 4:26PM

"Thomas Jefferson would be displeased."

Jefferson, who was a cheerleader for Robespierre's people.

Mike Walsh, MM| 7.13.11 @ 7:06AM

My regard for TAS slips a bit each time I read here the words "President Gingrich". The man gives sleazy opportunists a bad name.

florin| 7.13.11 @ 11:27AM

This man truly gives sleazy opportunists a bad name and yet respectable conservative publications keep giving him space...although he is not even a conservative - he is a RINO and one who treats women shabbily...Hannity almost drools over Gingrich which I find strange since Hannity claims to be purely and utterly conservative...why is Gingrich being sought after by conservatives??? Strange...

TrueBlue| 7.13.11 @ 4:59PM

He's sleazy, but he gets away with it BECAUSE he says what people want to hear, and what they agree with. What he's SAYING is right, but he won't follow through and actually do it. What the other candidates need to do is listen to what he's saying and then follow through, but don't allow this man into a position of power ever again.

Alan Brooks| 7.13.11 @ 6:08PM

Newt has to choose between his conservatism and his futurism. It is hard, yes; we don't like to let go of the past-- yet to be a futurist he has to do just that.
OR dump the futurism and be a conservative. CHOICE is hard.

Anthony| 7.13.11 @ 9:03AM

Brother Newt would have made a fine president, if only he were able to curtail his appetites, show some discipline, and not cowtow to leftist causes de jour.
He has a fine mind and if he truly wanted to be president, he would not have allowed himself to be derailed by his own hubris and flaws.
A pity, we need a mind like his.

D. Singh| 7.13.11 @ 9:23AM

Sir

Sooner or later an American presidential candidate will emerge who has a sense of history; who understands the 'sacred' documents of American history and who can deploy the text from those documents in great speeches - and we the people will follow.

KennesawJack| 7.13.11 @ 9:58AM

D., We've been looking for that person ever since Reagan. I hope your statement that "sooner of later an American presidential candidate will emerge......" is prescient, especially the "sooner" part.

florin| 7.13.11 @ 11:28AM

I believe Marco Rubio is the one we have been seeking but he needs more experience - perhaps in 2016...let's hope!

PJ| 7.13.11 @ 12:52PM

We need someone like him NOW! This country can not wait another 4 yrs esp since socialist Brazil is starting to look good!

Chef Schnauzer| 7.13.11 @ 9:48AM

The balance is out of whack and we got the 'Imperial Presidencies' and 'Imperial Courts' because congress and their useless staffs haven't done their jobs for decades. The only thing congress has done well post-Kennedy has been to steal from wealth creators keep 80% and dribble out the rest in vote gathering schemes.

Unfortunately - and NO thanks to the blithering idiots - the f*$&ing; clowns at TSA - Washington has not gotten a radioactive enema it so richly deserves..... the only consolation is that they will in fact run out of other peoples money - the sooner the better.

Bill Hussein O'Stalin| 7.13.11 @ 9:57AM

Does this mean those judges would not support a false religion like climate change? That would mean they would have to slap down Mr. Gingrich.

Mike D.| 7.13.11 @ 9:58AM

I always thought that the founding fathers didn't install enough checks and balances against a tyrannical judiciary. I am not sure at the time they believed how much damage a politically or ideological driven judical branch could be. We know now.

TrueBlue| 7.13.11 @ 5:14PM

It was a lot harder for them to do this when everyone knew the local judges because they lived down the street. Nowadays nobody knows who these guys are, so they can do what they want and then stay hidden.

The system the Founding Fathers came up with was good, but there were things they didn't expect to happen. Like people actually WANTING to be politicians as their sole occupation. Of course, if they didn't get paid like they do now it wouldn't have become a problem.

We should go back to them only being in session once or twice a year to vote on the budget or other necessities, and any emergencies that crop up. Pay them only during that time (and not some exhoribant amount either), then they go home and work a normal job the rest of the year just like everyone else.

In the age of airplanes they can easily fly to D.C. to fulfill their obligations, stay there for a couple of weeks (MAYBE a month) and then fly home. Mandate it the same way the Reserves are, to where they can't be punished with a loss of job just because they were in session fulfilling a federal obligation, which would also get them to fix the loopholes some companies have used to fire Reservists who were deployed for extended periods of time anyway.

Just think what that'd do for the budget too without having to pay for their current overpriced paychecks and the ridiculous amount of staff they have. Yes, I realize this would put people out of work, but you'd be surprised how much more in tune our reps would be to the economy if they actually had to work in it.

Doctor Right| 7.13.11 @ 10:27AM

Newt is still running..?

florin| 7.13.11 @ 11:29AM

He wants it to appear that way so he can continue to collect money to pay off his monumental debts and conservative talk shows and tv shows are helping him...

Mike 3/505| 7.13.11 @ 10:48AM

This article does imply one critical issue...making sure the judicial "bench" at ALL levels becomes conservatives. I have always felt it to be stupid for a conservative president to leave office with federal judgeships unfilled. Aside from reading Obama,
Geitner, Sebelius and a few others their rights, the first job a conservative president should tackle is filling all the federal judgeships. He should keep them filled throuout his tenure. This is the most strategic thing he could do domestically. By making sure he has a like minded judiciary, he helps his own agenda. Moreover, in the case of liberal ascendancy, a conservative judiciary can slow down their agenda.

Jim| 7.13.11 @ 10:54AM

We don't need yet another usurper. Congress has control over the lower courts, not the president; article III section 1 of the U.S. Constitution. Newt has a fine mind that should be used in an advisory position. He lacks the moral judgement to lead a democratic republic.

Drunken Sailor| 7.13.11 @ 11:17AM

1996 Newt, maybe. 2011 Newt? Nope, Ron Paul has a better shot.

Joe D.| 7.13.11 @ 12:53PM

Judges do not serve for life. According to the constitution they serve as long as they behave. And I would say this Judge is not. And also, they have no juridication over religion interpretation. And there opions are just that opions only. The first 70 years or so the President and Congress knew this.

fwb| 7.13.11 @ 1:15PM

Educated people would know the following:

For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6

But then 99% of the people in the US are uneducated and the education the few receive is built on lies. Blackstone is no longer taught at our law universities. If it were, the people would recognize that the magistrates (judges, presidents, congresscritters, etc) were all subservient to the will of the people. In fact, what Blackstone says is that the will of the majority overrides all. Even if one doesn't like this fact, that does not make it not fact. The Constitution was not created to protect the minority from the majority. What was said was that the system would allow minorities to come together to sometimes overpower the majority.

I noted some mentioned "good behaviour" and of course, the government claims IT decides what is and is not good behavior. However, it is We the People who are superior to the Constitution, not the Congress, not the President, and not the Courts. So it is We the People who hold the authority to decide what we believe is good or bad behavior. I suggest that ANY act of interpreting the Constitution by the Courts is bad behavior. The Courts were not granted the power to interpret the Constitution, that is a power stolen over time. The Framers considered granting such a power but the idea was defeated in the Convention.

RCV| 7.13.11 @ 7:17PM

What educated people know is that what you're saying is simply false. The Framers expressly intended to give the Judiciary the power to interpret the Constitution, to void legislative acts which contravene it, and "to protect the minority from the majority." As Hamilton wrote in The Federalist, #78:

"If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

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. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."

Al Adab| 7.13.11 @ 1:19PM

Newt won't be the one, but he has a significant role to play not unlike that of Steve Forbes in 2000. A man of ideas who changes and focuses the dimensions of the debate. There are others this year who can make the same contribution and the ultimate condidate will be well advised to listen and heed.

Conserdude| 7.13.11 @ 3:24PM

Sounds great, but Newt is unfit to be president. He lacks maturity, self-control, and is a fatally flawed character. He has no chance, so please disappear, Newt. Spare us from these Newt mouthpieces.

CalMark| 7.13.11 @ 3:42PM

Newt has a great idea here. It's a legitimate "check and balance" on the judiciary, far more effective than impeachment. Such legislation would also be perfect for provisions, as the Constitution allows, exempting it from judicial review.

What a spectacle when the ACLU and their ilk would start filing illegal challenges in the courts, looking to get their way yet again. And radical judges (maybe even the very ones whose positions were eliminated!) would unlawfully issue stays and "strike down" laws with incendiary language. It would end badly for the Ruling Class.

As it stands now, a lone judicial Marxist can single-handedly thwart the Legislative and Executive branches from carrying out the will of the vast majority of Americans. We are far down the road to tyranny; this must stop.

Naturalborn Texican| 7.13.11 @ 5:06PM

Gingrich is a sharp, savvy guy when it comes to politics, and I think he would do an exceptional job if he was elected.

But I am afraid there's too much baggage attached to him at this point. Too bad, but I guess we all make our own choices, one way or another, and sometimes they are not always the best ones.........

POST American| 7.13.11 @ 9:55PM

----Rick Perry, Mitt Romney, and that prime
presiding figure from the heyday of the Globalist-RED China sellout, Newt Gingrich, are CON-serving EYE-cons ---but 'conservative?
----Absolutely NOT.

David Coyle| 7.14.11 @ 5:30AM

As a matter of fact, a minority of Judges rule that way so it doesn't limit them at all.
http://hcgactivator.posterous......-quest-for

Interloper| 7.14.11 @ 7:07AM

The court actually allowed the valedictorian to pray, though it had no noticeable effect. In short, the premise of this article is a lie.

And, as one lucid commenter said, the judiciary is supposed to be the insulated, dispositive branch of government under the U.S. Constitution. The point was to avoid mob rule. Gingrich is playing you all for fools while he picks your pockets. There is absolutely no chance of Congress stripping federal courts or judges of power, or eliminating them altogether.