Presenting the most powerful challenge to the liberal establishment in this campaign.
The genius of America’s Founding Fathers is reflected in the innovative system of checks and balances they adopted for our government, to prevent abuse of power by any authority. Congressional legislation is subject to veto by the President, and to review for constitutionality by the courts. The President and his Executive branch are subject to the laws passed by Congress, enforced by the courts, and presidential appointments are subject to confirmation by the Senate. So are treaties. The President appoints the judges, subject to Senate confirmation.
And if those judges refuse to apply the law objectively as written, and instead engage in judicial activism making up their own law based on their own liberal/left values, then they are applauded by the liberal/left media and academia. The rest of us can go pound sand.
At least that is the view of the New York Times, the Washington Post, the bar association, and the law schools. They are the ultimate authority and rulers in America under this doctrine of judicial supremacy. Any other view is dangerous to our most fundamental liberties, they tell us (at least while the judges reflect their liberal/left views).
But not according to Newt Gingrich, the Founding Fathers, and American history. To these authorities, it is judicial supremacy that is dangerous to our most fundamental liberties.
Gingrich explained the historical checks and balances on the judiciary in our American system of government, in a brilliant speech to the Value Voters Summit last month. He accompanied that with a detailed campaign position paper released at the same time, entitled “Bringing the Courts Back Under the Constitution.” These insights are reflected as well in Plank 9 of his new 21st Century Contract with America.
The currently reigning establishment counterauthorities cited above reject any such checks on their power. But in Gingrich they have a foe who has proven he knows how to beat the establishment, and has the guts to take them on.
Gingrich recalls the actual checks and balances on the judiciary established by our Founding Fathers, who recognized the dangers of judicial supremacy. Jefferson wrote in challenging such judicial supremacy in 1820, “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Jefferson further wrote later that year, “The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet.”
The view of Jefferson, the Founding Fathers, and Gingrich is that interpretation of the Constitution is not the role of the judicial branch alone. Because we have three, equal, co-branches of our government, reflecting the separation of powers that enables checks and balances, Congress representing the legislative branch and the President representing the executive branch, have equal authority to interpret the Constitution as well.
Under our Constitution, Congress and the President consequently serve as checks and balances on a runaway judiciary of activist judges reading their own elitist liberal/left values into the Constitution, contrary to the will of the people. Because Congress and the President are subject to regular elections, they are subject to the ultimate check by the people holding them responsible for their conduct in office, including their interpretations of the Constitution.
For an example as to how this works, Gingrich points to Abraham Lincoln and his response to the Dred Scott decision upholding slavery as involving established property rights. Lincoln disagreed with the Supreme Court’s interpretation of the Constitution, as informed by the Declaration of Independence and other founding documents, concluding that there was no basis in the Constitution or anywhere in American law for holding that some people could have property rights in the person of other people. Lincoln agreed that the Dred Scott decision was binding on the parties to that case, but not on the whole nation, or on his Administration, saying in his 1861 Inaugural Address:
[T]he 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.
Consequently, Lincoln’s Administration refused to enforce the Supreme Court’s doctrine that slaves were the valid property of others, or to recognize the Dred Scott decision’s binding authority on his Administration. He acted contrary to it in granting passports to African Americans who applied for them, recognizing them as people not property. He signed legislation denying the Supreme Court’s property rights over slaves whose “owners” took them to Federal territories, which was directly contrary to the ruling in Dred Scott. In 1863, Lincoln issued his Emancipation Proclamation freeing all slaves within the United States, again directly contrary to the Supreme Court’s “property rights” announced in Dred Scott. If that case was binding on the Lincoln Administration, then the federal government would have had to pay compensation for the Emancipation Proclamation to all slaveowners under the Fifth Amendment’s Takings Clause.
In his Values Voter Summit speech last month, Gingrich similarly explained how Franklin Roosevelt exercised his check and balance on the Supreme Court, saying:
In 1942 a group of German saboteurs were landed in Florida and Long Island. They were all picked up within two weeks. Roosevelt brought in his attorney general and said: They will be tried in a military court, they will be executed, it should happen within three weeks, and tell the Supreme Court if they issue a writ of habeas corpus, I will not honor it, and therefore they should not issue it. I am the commander in chief in wartime. They aren’t.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?