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Sunday, December 11, 2011

Newt Gingrich: Bad Historian / Bad Ideas

A New York Times editorial today criticized Newt Gingrich for what they called his "attack on the courts" by "McCarthyist tactics." 

They cited Newt as proposing that Congress should punish federal judges who issue "wrong" opinions — such as those affecting "religious liberty" — by calling on judges "to explain their constitutional reasoning", and if they were not satisfied, to simply eliminate their jobs. (NYT: Editorial, 12/11/2001: "Mr. Gingrich's Attack on the Courts"). 

I was curious about how Gingrich came to these proposals. Sure, he is prone to making outrageous comments, but he is also a "historian", as he often reminds everyone. 

Did he really mean that or was he being misquoted, taken out of context, distorted by the Eastern establishment liberal press, as usual?

Fairly quickly, I found a YouTube video of a speech he gave in Iowa, which the site, headlined: "Gingrich claims ‘there is no Supreme Court’ in the U.S. Constitution."

I watched the video. Newt did say that but they were quoting him out of context. Again.

Newt was referring, not to Article III of the Constitution, which explicitly establishes a Supreme Court, but to the notion that the Court is "supreme over the legislative and executive branch. We have the entire national elite that wants us to believe that any five lawyers are a national convention. That is profoundly un-American and profoundly wrong."

In another speech, Gingrich, claiming his bona fides as a "historian", cited "The Federalist Papers" Number 78, authored by Alexander Hamilton as establishing that the judiciary under the proposed constitution, was intended to be the "weakest" branch, not equal to the legislative and executive.

Newt’s inference of course is to buttress the conservative cry that the courts don’t have the power to overturn local, state, or even federal laws passed by their legislatures or ordered by their leaders. 

He argues a simplistic analogy: suppose one morning 5 lawyers decided that 2 + 2 = 5. Would we need a constitutional amendment to overturn them? Absurd, he cries to the approving laughter of his audience. So too, the founding fathers in their wisdom cannot have meant to permit Justice Kennedy (the swing vote on the Supreme Court) to awaken one morning and decide that he felt liberal that morning and voted that way to ban prayer in schools in Iowa.

Compelling argument? What’s the answer.

I read the document Newt the historian cites, the accumulation of essays that make up "The Federalist Papers". I have had a copy since law school, but instead I readd one that comes free with an Ipad app along with the constitution.

In #78, the founding father, Alex, did say what Newt says he said. But, amazingly, Newt took the statement out of context, just like he says the liberal press does to his brilliant ideas.

Hamilton’s article explains that the judiciary is weak because it has neither the power of the purse (as does Congress) nor a military (as the executive commands) to enforce its opinions.

However, he continues: "The complete independence of the courts of justice is peculiarly essential in a limited Constitution." 

That would seem to undermine one of Newt’s ideas, to intimidate judges.

Hamilton is specific and clear:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

He goes even further to undercut the conservative argument about the power of the court to interpret the constitution:

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

The rest of the article is directed toward the argument for permanent appointments of judges to insulate them from the sort of attacks that later idea men such as Newt Gingrich would conjure.

Oh yes, according to Wikipedia, Gringrich’s credentials as a historian stem from obtaining a Ph.D. in modern European history from Tulane in 1971. "His dissertation was entitled ‘Belgian Education Policy in the Congo: 1945–1960'.... "Gingrich joined the history department at West Georgia College as an assistant professor. In 1974 he moved to the geography department and was instrumental in establishing an interdisciplinary environmental studies program. Denied tenure, he left the college in 1978."