In the final debate before the Iowa caucuses, most candidates stuck to the same talking points which, by now, have been repeated dozens of times over. However, one issue had fallen to a level of secondary importance compared to questions on economic, fiscal, and foreign policy. This issue, raised by Fox News anchor Megyn Kelly in a question directed at Newt Gingrich, deals with the President’s proper relationship with the judiciary. Kelly’s question went as follows: “You proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan saying it alters the checks and balances of the three branches of government. The used words like ‘dangerous,’ ‘outrageous,’ and ‘totally irresponsible.’ Are they wrong?”
The honest answer would have been a simple, “No.” Those two attorneys general are, as will be demonstrated, absolutely correct in their assertions. Instead, Gingrich retrenched and reasserted the notion. Here is his first response in full:
“Well, the first half is right: it alters the balance because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people. [applause]. There is an entire paper at Newt.org – I’ve been working on this project since 2002 when the 9th Circuit Court said ‘one nation under God’ is unconstitutional in the Pledge of Allegiance, and I decided if you had judges who are so radically anti-American that if they thought ‘one nation under God’ was wrong, they shouldn’t be on the court. Now, if we have – [applause]. I taught a short course on this at the University of Georgia law school, I testified in front of sitting Supreme Court justices at Georgetown law school, and I warned them: ‘You keep attacking the core base of American exceptionalism, and you are gonna find an uprising against you which will rebalance the judiciary.’ We have a balance of three branches. We do not have a judicial dictatorship in this country, and that is what The Federalist Papers promised us, and I would – just like Jefferson, Jackson, Lincoln, and FDR – I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.”
At the conclusion of his statements, the crowd responded with thunderous applause, which is far more worrisome than the irresponsible, statist doctrines themselves. He continued by citing Jefferson’s abolition of eighteen out of the existing thirty-five federal courts in 1802, Lincoln’s repudiation of the decision in Dred Scott v. Sanford (1857) in his 1861 inaugural, and by disparaging the two attorneys general for being “lawyers” rather than “historians.” Many of the other candidates, mostly the prominent social conservatives on the stage, took notes and echoed the former Speaker’s statements, receiving similar levels of crowd support.
Though Gingrich may be a historian according to his college degree, he is a poor one, and an even poorer political philosopher and constitutional scholar. After all, “History should be written as philosophy,” and without a firm philosophic foundation from which to interpret a set of events, the substantive value of Gingrich’s historical appeals is greatly diminished. First, the constitutional role of the Supreme Court and lower federal courts should be explained, as Gingrich himself does not appear to recognize it.
The words “checks and balances” and “separation of powers” never appear in our Constitution, but the legal doctrines which they conceptualize most certainly do. Article I outlines the structure, role, and limitations of Congress; Article II does the same for the Chief Executive; Article III, though the least developed of the lot, does the same for the Supreme Court and lower federal courts. Three separate Articles, three separate branches of the federal government, three sets of powers and limitations – this was the design of our Founders.
The reason so much disagreement arises over Article III is that so much of what the Founders viewed as the proper role of the Judiciary was simply excluded from the Constitution. Why? At the time, the role of the courts was simply understood under the long-established system of English Common Law. Various courts were established at various hierarchical levels for various purposes, one of those purposes being to protect individuals from encroachments upon their constitutional rights by governmental authorities. These courts drew their rulings from the letter of the law as outlined in the English constitution (no one document, as our own, but instead a series of sequential limitations on governmental authority, such as the Magna Carta and the English Bill of Rights). Our court system was founded on similar principles with one major exception: the Constitution of the United States of America is, by its own wording, “the Supreme Law of the Land” and cannot be contradicted by any court established under its auspices – the procedure for amending the Constitution is outlined, instead, in Article V. So when Article III, Section 2 states that “[t]he judicial power shall extend to all cases… arising under this Constitution,” it means that the Constitution is the ultimate authority of judicial decisions – specifics on the judicial proceedings themselves were left unstated as they were simply understood in Framers’ historical context.
Even in The Federalist Papers, by and large the cornerstone of political philosophy as it applies to the Constitution, Madison and Hamilton spend excessive amounts of time outlining the role of the Supreme Court and other courts. Specifically, Alexander Hamilton directly challenges Gingrich’s claim that the courts are somehow particularly dangerous to the Constitution or individual liberty in The Federalist, No. 78:
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [Emphasis added.]
Furthermore, the very fact that judges are unelected, something openly criticized by Gingrich et al., was seen as (and is) yet a further safeguard of Americans’ constitutional liberties – the same goes to the protection of judges’ salary levels while on the bench. These judges, removed from the political process excepting their nomination and confirmation, are then free to make rulings independent of the “spirit of faction” which has a tendency to grip the political process. So by removing themselves from the fray, they can, without fear of punition, give an honest (though far from infallible) ruling on the constitutionality of certain legislation. So important was this distancing of judges from temporary “passions of the people” that a similar design was originally implemented in the Senate until it was abolished by Amendment XVII in the Progressive Era (this was also the purpose of the Electoral College). In any case, Congressmen and other elected officials rely heavily on the will of the people for their station and, as such, are more likely to bend to public sentiments even when said sentiments are noticeably dangerous to individual liberty.
In this light, the intended role of the courts may be seen fully: they were designed to be impartial arbiters of justice, guided only by the Constitution and their (hopefully rational) philosophic interpretation of it. The responsibility of choosing judges with correct constitutional interpretations fell, and still falls, on the President and the Senate. Just examine the long-forgotten brilliance in separating that now contentious branch from the nonsensical politicking so common in direct elections! One can only imagine how much legislation favoring the expansion of the federal government would have been stopped by representatives chosen by the state legislatures – statism at the more localized state level is another issue.
This, however, is where issues tend to arise – what of judges who are appointed during philosophic low points in Congress? Does not the Constitution itself allow for the removal of judges when they are not exhibiting “good Behaviour?” Yes, but “good Behaviour” remains a largely unqualified term that is in dire need of historical and constitutional context. Naturally, “good Behaviour” excludes those things which already fall under impeachable offenses. Beyond that, what qualifies as “good Behaviour” for judges should be seen as analogous to the ethics rules that Congress places upon itself. In essence, anything which could be deemed as internal corruption or generally unbecoming to a public official of such station is outside the umbrella phrase “good Behaviour” – simply giving rulings which the general populace dislikes is not.
So then, what of Gingrich’s appeals to Jefferson, Jackson, Lincoln, and FDR? The first is easy enough – Jefferson, though one of the most famous Founding Fathers, was not infallible. As Madison stated in The Federalist, No. 40, “The prudent enquiry in all cases, ought surely to be not so much from whom the advice comes, but as whether the advice be good.” In simpler terms, this means to avoid fallacies of association – one would not call a drug addict’s admonition to avoid drugs unworthy of consideration any more than one should call Jefferson’s usage of slaves or alleged inconsistencies within his own philosophy worthy of imitation. Instead, the ideology behind such a move should be determined as either good or bad – not the ideologue.
In this instance, however, Gingrich distorts the history he claims to support. Jefferson did not simply assert some nonexistent presidential authority to remove judges from the bench, nor was it simply because these judges issued rulings which he did not support. In the waning hours of his presidency and Federalist control of Congress, John Adams signed into law the Judiciary Act of 1801, also known as the “Midnight Judges Act.” As a misuse of Congress’s ability to erect lower federal courts, this act allowed Adams and the Federalist Party to stack the judiciary with supporters before they left office. This act effectively violated the concepts of separation of powers and checks and balances by mixing politics and jurisprudence – by unjustly compelling the judiciary by force of numbers to kneel to the whims of a particular party in power. The repeal of this act in 1802 was political insofar as it negated the irresponsible actions of a previous administration. Ergo, Gingrich’s proposed plan for the judiciary would be more akin to the “Midnight Judge’s Act” of John Adams than to Jefferson’s repeal of the same.
Gingrich did not explain exactly what he meant when he said that Jackson took on the courts, but one can assume that he was discussing President Jackson’s response to the ruling in Worchester v. Georgia (1832). This ruling overturned a Georgia state law which required white residents to receive a permit if they were to live on Indian land – the High Court struck down this law on the grounds that dealing with Indian tribes is the sole power of the federal government. To this, Jackson famously (and fictitiously) responded, “John Marshall has made his decision; now let him enforce it!”
In reality, the ruling affected President Jackson little and placed no obligations upon him. Though he should have, as Chief Executive, demanded that Georgia free Worchester (a missionary imprisoned in violation of the overturned legislation), he merely called the ruling “still born” and allowed Georgia to keep Worchester imprisoned for seven more months. Here, the Court was correct while Jackson’s opposition, however exaggerated, was not based on constitutional or rationally moral principles.
It is hard to argue, however, that Lincoln’s anger toward the Court in Dred Scott v. Sanford (1857) was not justified. Legal historians question the Court’s rationale for taking the case in the first place – because Dred Scott sued in Missouri, he was, under the laws of Missouri, still a slave. Quite oppositely, if he had sued in Illinois, it is quite possible that he could have been ruled a free man. There was little justification for establishing a national precedent on an issue where the doctrine of stare decisis, or letting lower court rulings stand, would have been sufficient and where the Supreme Court lacked jurisdiction to begin with – the legality of slavery was, however repugnant to the principles of individual liberty, a purely state issue according to erroneous provisions within the Constitution.
In any case, Chief Justice Robert Taney took the issue a step further and declared that blacks, even free blacks, could never attain U.S. citizenship, reducing them eternally to the status of property and that Congress could not prohibit slavery in federal territories. Undoubtedly, President Lincoln was well within his constitutional rights to criticize the opinion in his inaugural address, but he never made any move to reverse Dred Scott – whether such a move was prevented by war or Lincoln’s own restraint, Lincoln’s vocal criticism is not an example of the kind of executive interference into the judiciary for which Gingrich is calling. (Allen Mendenhall provides fuller examination of the historical backdrop of the Dred Scott decision in his piece “Outline and Summary of Ira Berlin’s Many Thousands Gone.”)
The last of Gingrich’s examples, and by far the most interesting, is President Franklin Delano Roosevelt – by all accounts the most anti-capitalist president in the history of the United States, with Woodrow Wilson and Barack Obama being the possible exceptions. Unlike Jefferson, FDR was not reversing some previous intrusion into the intended sanctity of the court system. Unlike Jackson and Lincoln, FDR was not merely passively displeased with Supreme Court rulings. But like Gingrich, FDR desired to bend the judiciary to his will in one of the most dangerous political maneuvers ever attempted in this country.
From the latter years of the Hoover Administration until 1937 at the close of the Lochner Era, a thirty-two year period in which the Supreme Court practiced a distinctly capitalistic jurisprudence (as explained in my piece “Capitalism in America: Lochner v. New York (1905) and the Right to Contract”), the Supreme Court struck down several bouts of New Deal legislation. As it often does, the judiciary served its purpose and struck down the legislation as unjust expansions of the Commerce Clause and as violations of individual rights. FDR, sharply dissatisfied that his ambitious socioeconomic goals were being stunted by the Constitution and its proper defenders, proposed a plan which would have allowed him to appoint six new justices to the Supreme Court (provided there were six justices over the age of seventy years and six months on the bench), changing the Court’s membership to fifteen. Even so, members in FDR’s own party saw the danger such a move posed, as did the general public. In the end, the move failed – FDR was able to achieve his majority by appointing justices throughout the rest of his unjustifiably long term in office. It should be remembered, though, that even the new anti-capitalist Court never mandated that Congress pass legislation such as the Social Security Act of 1935. The Court merely permitted it in cases like Helvering v. Davis (1935). True, the Court reneged on its responsibility to uphold individual liberty, but so did Congress – such legislation should simply never have passed in the first place.
Furthermore, accusations that the High Court and lower courts have legislated from the bench are also partly due to another of Congress’s failures: its chronic inability to write objective laws. A quote often attributed to Justice Sandra Day O’Connor, though it most likely originated from Justice Martin Coyle, states that a wise old man and a wise old woman should be able to examine the same law and come to the same conclusion. This would be true were it that laws exhibit the necessary objectivity for said laws to be just, but unfortunately both Congress and state legislatures have proven themselves incapable of writing objectively for many decades.
Case and point, the Sherman Antitrust Act of 1890 contains such subjective measures as making it illegal to charge prices that are too high, too low, or the exact same as one’s competitors – enforcement depends largely on the current temperament within the Bureau of Antitrust. Even so, such subjective legislation, abhorrent on its own terms, makes its enactment and interpretation nearly impossible without further clarification. Instead, federal judges charged with interpreting the law must necessarily act as part-legislators to even make sense of the largely incoherent blocks of paper passed by Congress and other legislatures each year. This too is primarily a fault of the legislative branch, not the courts.
This examination of the full implications of Gingrich’s position brings to light the real danger behind attempts to influence the judiciary – not that it will strike down just legislation, but that it will uphold statism on the part of Congress and the President. Very rarely is the judiciary the original initiator of force against individual liberty (the Dred Scott decision being one of the few counterexamples). Instead, the greatest threat the judicial system poses to individual liberty arises through the neglect of its actual responsibility: serving as an impartial arbiter between the political branches of the government and the people, the ultimate guardians of the Constitution, if and when the people forget the importance of their own liberty.
Despite this, Gingrich appears to be encouraging the diminishment of the republican defenses of individual liberty inherent within the Constitution in favor of more directly democratic processes. The words “republican” and “democratic” here have no partisan meaning (in fact, the names of the parties themselves have no true meaning), but instead relate to the differences between two types of government: republics and democracies. Whereas a republic is a limited system which prevents unfettered action on the part of a government, a democracy, be it direct or representative, has no limitations on governmental authority – only the will of the majority rules.
Like FDR, Gingrich’s favorite President, Gingrich appears to hold the will of the people as an ethical primary, a basis of legitimacy for all subsequent political decisions. It is not. Whether executed by one tyrant or millions of tyrants, violations of individual rights are ethically unacceptable in any system of government. Majority rule was not the chief principle which the Framers enumerated in the structure of the Constitution – it is individual rights, despite existing imperfections within the Constitution and the Founders’ own ideologies. The protection of individual rights is the sole purpose of government, not the implementation of the majority’s will against an unprotected minority, such as the minority that objects to the inclusion of religious precepts in a public school.
If it were necessary to respond to Gingrich’s virulent defense of the words “under God” in the Pledge of Allegiance, I could explain the importance of separating the church and state through numerous examples of religious officials that object to the necessarily sectarian nature of school prayer and Bible readings, such as Bishop John Hughes in the 1830’s or Bishop Francis Kenrick in 1844 (Dierenfeld 20); of young children being “humiliated, severely beaten, and expelled” by their classmates and teachers even when the prayers or readings were voluntary, as with Catholic children throughout much of U.S. history (21); of school officials who declared such demagoguery as, “We are determined to protestantize the Catholic children… [or] clap them into jail,” as with a school committee official in Maine in 1848 (23); of individuals being tarred and feathered for arguing that their children should not be compelled to participate in such prayers and readings, as with Father Bapst in 1851 (24); or of whole sects of individuals being attacked, even leading to instances of castration, for their children refusing to do something as simple as saying the Pledge of Allegiance, as with Jehovah’s Witnesses following Minersville School District v. Gobitis (1940) which upheld the mandatory daily Pledge (something that did not even include “under God” until 1954 as a propaganda tool against the coercively atheistic Soviet Union) (42) – it took three years of violence against Jehovah’s Witnesses to get the Court to reverse its ruling and to strike down mandatory nature of the Pledge in West Virginia State Board of Education v. Barnette (1943) (44).
However, a discussion on Free Exercise and Establishment Clause jurisprudence can be reserved for another time. Rather, Gingrich’s plan to directly attack the judiciary should be dismissed in the same manner in which the two attorneys general dismissed it: as “dangerous,” as “outrageous,” and as “totally irresponsible.” He fails to see the generally passive role the courts play in regard to violations of individual rights, having neither “influence over… the sword or the purse.” Simultaneously, he fails to see absolute danger that his anti-capitalist ideology poses to the integrity of the Constitution which, as a public official, he swears to defend – such a move to destroy the efficacy of the judiciary as a shield for individual rights would have ramifications far beyond his own presidency, if he achieves it. The courts would not only be compelled to yield to Gingrich’s brand of anti-capitalist statism, but also to that of all future administrations. Imagine, for instance, if President Obama had already initiated the same against the likes of Judge Roger Vinson or Chief Judge Joel Dubina and Circuit Judge Stanley Marcus of the 11th Circuit for striking down the individual mandate in his 2010 “Affordable Care Act.” At least he limits himself to, however inappropriate, censuring the Court in his State of the Union Address rather than issuing them subpoenas to congressional hearings.
The dangers that the Former Speaker’s plan poses to individual liberty in this country are vast, as are those that result from a public (like the audience at the Iowa debate) that blindly throws its support behind such an irrational doctrine. And for what? The preservation of a Cold War Era propaganda tool? If the rest of his record does not sufficiently exhibit it, then Gingrich’s total disregard for the proper role of the courts, not to mention the proper role of the President of the United States and of Congress in relation to the courts, unquestionably demonstrates that this man deserves no seat in this nation’s highest office.
cahillm2. (2011, December 15). “Newt Gingrich destroys Megyn Kelly on judiciary power.” FOX News and Iowa GOP Republican presidential debate – Sioux City, Iowa. Retrieved from http://youtu.be/pLQebqVQKcc.
Dierenfeld, B. (2007). The Battle over School Prayer. (P.C. Hoffer and N.E.H. Hull, Eds.). Lawrence, KS: University Press of Kansas.
Dred Scott v. Sandford, 60 U.S. 393 (1857).
Florida v. United States HHS, 648 F.3d. 1235 (11th Cir. Fla., Aug. 12, 2011).
Florida v. United States HHS, 780 F. Supp. 2d 1256 (N.D. Fla., 2010).
Hamilton, A., Jay, J., and Madison, J. (1787-1788). The Federalist papers. (G. Wills, Ed.). New York, NY: Random House, Inc.
Helvering v. Davis, 301 U.S. 619 (1937).
Kens, P. (1998). Lochner v. New York: economic regulation on trial. Lawrence, KS: The University of Kansas Press.
Lochner v. New York, 198 U.S. 45 (1905).
Mendenhall, A. (2011, February 9). “Outline and summary of Ira Berlin’s many thousands gone.” The Literary Lawyer: a forum for the legal and literary communities. Retrieved from http://allenmendenhallblog.com/2011/02/09/outline-and-summary-of-ira-berlins-many-thousands-gone/#more-380.
Minersville School District v. Gobitis, 310 U.S. 586 (1940).
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
Worcester v. Georgia, 31 U.S. 515 (1832).