This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Public Policy (CCPP) Peter Ferrara was published November 16, 2011 on The American Spectator website.
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.
Just as Lincoln, Roosevelt refused to be bound by Supreme Court rulings he viewed as contrary to the Constitution. In such a case, the Attorney General would issue an opinion as to the Administration’s view of the Constitution on a particular matter, and it would then be up to the people ultimately to decide in holding the President and his party accountable at election time. This is how a system for a free, self-governing people works.
Gingrich cites the precedent of President Andrew Jackson as well in the controversy over whether the Bank of the United States was constitutional. Gingrich quotes Jackson’s response to Supreme Court precedents that the Bank was constitutional:
The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
This was the same position that Lincoln took in regard to Dred Scott. Gingrich further explained the issue in his speech at the Value Voters Summit:
Jackson in — in tackling the Bank of the United States, which he said was a(n) overly centralized form of power — think of it as the earlier Bernanke — was told, well, the Supreme Court has said that it’s constitutional. He said: Fine, that’s their opinion. And he said: I have a different opinion. I am the president. They’re a court. They get their opinion in court. I get my opinion in the White House.
Still More Checks and Balances
Gingrich and his campaign present a thorough program for countering runaway liberal judicial activism. President John Adams appointed Federalist Party federal judges who enforced the Alien and Sedition Acts to imprison Jeffersonian activists contrary to the Constitution. When the people had their say in the election of 1800 and voted out Adams in favor of Jefferson, Adams responded in the following lame duck session by doubling the number of federal judges. Those abusive appointments were labeled “Midnight Judges.”
When Jefferson came into office, he and his party simply abolished the judicial seats to which the Midnight Judges had been appointed, thereby removing at the time half of all federal judges. They didn’t impeach the judges, they just abolished their offices. The Supreme Court in Stuart v. Laird recognized that this was a valid exercise of Congress’s power explicitly provided in the Constitution to provide for the appointment of inferior (to the Supreme Court) federal judges.
Gingrich argues that the same can be done today in regard to federal judges who exhibit a pattern of judicial activism, making up the law in accordance with their liberal values rather than objectively enforcing the law as written. He raised that possibility in response to a recent ruling of a San Antonio federal judge holding that if a student at a graduation ceremony even used the words “God” or “benediction” or “invocation,” he would lock up school officials. Ninth Circuit beware, Gingrich recognizes that under established law, you can just be abolished outright.
Gingrich notes as well that Article III, section 2, clause 2 provides that “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” That means that yes, indeed, Congress has the power to limit the jurisdiction of the federal courts, and this power has already been upheld by judicial precedents. That means duly adopted legislation can provide that the federal courts would have no jurisdiction, for example, to hear cases challenging the Defense of Marriage Act (DOMA). Legislation could define marriage in America as between a man and a woman, and provide that is outside the jurisdiction of the federal courts as well.
Of course, the people would be free to hold Congress and the President accountable for such actions at the next election. But that only means that the ultimate check and balance is in the hands of the people, rather than unelected judges, which, again, is the right system for a free, self-governing people.
Gingrich argues further that Congress has the right and power to impeach federal judges for wrong decisions, or to subpoena them before Congress to explain their decisions to the American people if they can, or to discipline the judiciary through its control over the spending power. If Congress can defund a war with troops in the field, surely it could defund the Ninth Circuit, or other judges who think they can march to the beat of their own drummers, rather than objectively apply the Rule of Law. Those who favor rule by lawyers rather than rule by the people object to these powers. They can take their case to the people as well.
Gingrich’s Value Voters Summit speech, his campaign position paper, and his Contract with America provide a thorough, powerful complex of checks and balances to abuse of judicial power by activist judges, grounded in American history and established American law. It is the most powerful challenge to the liberal establishment in this campaign. Pro-family and Christian voters, take notice: there is a special opportunity here to restore the power of the people intended for us by our country’s founders.