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President Gingrich Would Curtail Judicial Power

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

By 7.13.11

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"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 20th 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.

Over the past few weeks, Gingrich’s presidential bid has been beset with a series of staff departures that have induced media speculation about the long-term viability of his efforts. A report in the Washington Post, for example, claims Gingrich has had difficulty raising money and quotes former advisors who doubt he can recover politically. But Gingrich insists he is in the race to stay and that his antagonists in the “big media” have underestimated how potent the right mix of ideas can be in the presidential race.

On that point, Gingrich is absolutely correct, Regent University government professor Charles Dunn said. Other political figures who have had setbacks on the campaign trail later regained their footing because they presented the voting public with a compelling platform for reform, Dunn said. While other Republican candidates have been critical of judicial activism, they have not put the issue within a larger historical context the way Gingrich has.

"Other Republicans have spoken about appointing strict constructionists to the court, but Gingrich is going further here and telling us that Congress needs to stand up because it has allowed the Constitution to be turned upside down."

In the modern age, the Supreme Court has been dictating policy to Congress and to the executive agencies, Dunn continued. But there is reason why Article One of the Constitution begins with Congress, then it lists the Executive under Article Two and the Court is last with Article Three, he noted.

"You cannot read the Federalist Papers without agreeing with Newt," Dunn said. "The federal judiciary has become too powerful and it’s an issue the other candidates will need to address. Newt has opened up a very important discussion. He is a man of ideas."

Going forward, Gingrich has settled on three major themes for his campaign: economics, American Exceptionalism and national security.

"Some of these ideas may seem unusual on the surface but we are going to wrap them in history so the average American will see that what I’m suggesting is not new or radical," Gingrich said. "The idea is to return to the models that worked in the past."

 

 

 

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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.