Posted by: captainfalcon | December 16, 2011

Why Newt Gingrich is Fundamentally Not a Conservative, Cont’d

He wants to overturn Marbury v. Madison (which, Bill O. style, he decides to call Cooper v. Aaron, as though it were Stewart Smalley). From “Bringing the Courts Back Under the Constitution:”

The constitutional solution is threefold.

First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional. An outline of some of these constitutional steps is outlined [sic] elsewhere in this paper.

Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

A Gingrich administration will undertake each of these steps.

The White Paper of which this is an excerpt is terribly written and argued. Linda Greenhouse notices the biggest prima facie howler, which is that Justice Ginsburg’s name is consistently misspelled. This passage also stood out for its combination of syntactical and analytical errors:

In the fifty-three years since Cooper v. Aaron, the Supreme Court has become a permanent constitutional convention in which the whims of five appointed judges have rewritten the meaning of the Constitution and assigned to themselves the last word in the American political process. Under this new all-powerful model of judicial supremacy, the Supreme Court — and by extension [don’t see how this follows – CF] the trail-blazing Ninth Circuit Court and even some bold or arrogant district judges — federal judges [sic] have been able to redefine the Constitution and the law unchecked by the other two co-equal branches of government.

Here’s something else that seems out of place in a Gingrich White Paper calling for the end of judicial supremacy while insisting that it is a creature of the 1950s:

For his part, when Franklin Delano Roosevelt found the Supreme Court consistently throwing out New Deal legislation, he attempted to pack the Court with additional Supreme Court justices. While Roosevelt ultimately lost the battle in Congress, the assault had so intimidated the conservative justices that they shifted their opinions dramatically to accommodate the views of the vast majority of the American people as expressed in their votes for president and Congress. Roosevelt lost the battle but won the war.

If Franklin Roosevelt solved the problem with the New Deal then (a) it was a problem before the 1950s, and (b) it isn’t, contra the White Paper, a problem now. Also, (c) what’s up with a Republican White Paper praising Franklin Roosevelt’s court-packing scheme?

Newt’s list of “constitutional steps that the legislative and executive branches . . . can take to check and balance the judiciary and reestablish constitutional balance” is also a model of conservatism, advancing such restrained and sober prescriptions as (1) “Abolish Judgeships and Lower Federal Courts,” (2) create new statutory guidelines for impeaching judges for “issuing unconstitutional opinions, asserting arbitrary power, and otherwise usurping the authority of the legislature” [I think whoever ghost wrote this White Paper — though it says it borrows liberally from Gingrich’s previous writings — is a Tax Protester], and (3) “Ignor[e] a Judicial Decision.”

I’d add, in closing, that Gingrich’s reliance on Larry Kramer’s work on popular constitutionalism to support the view that judicial supremacy is a recent and odious invention is both wrong and profoundly unconservative.

It’s wrong because Kramer’s work actually supports a view that, while judicial supremacy isn’t and never has been omnipresent or univocal, it is nonetheless an ancient thread in American constitutional politics that emerges in different permutations and degrees at different times, and co-exists uneasily alongside popular constitutionalism. As he puts it:

The very diffuseness and decentralization of popular constitutionalism left room for these advocates of judicial supremacy to continue to nurse their claim. By the early 1840s, popular constitutionalism and judicial supremacy were sharing space in American political culture, co-existing in an uncertain and sometimes tense relationship . . . Struggle was not constant. It consisted of periodic blowups occurring after years or sometimes decades during which active backers of the two principles jostled for position while ordinary citizens remained largely unconcerned.

Gingrich’s reliance on Kramer’s work is also perversely unconservative. If Kramer is to be believed, the conservative should welcome and seek to preserve judicial supremacy because it represents the maintenance of the existing social order. Judicial supremacy is at its lowest ebb, to borrow Justice Jackson’s phrase, during times of social upheaval.* Kramer again:

[W]henever an issue or a leader managed to capture the general public’s attention—whenever, in other words, circumstances impelled Americans to crystallize their latent beliefs and choose sides—they consistently chose popular constitutionalism over the view that the Constitution was subject to authoritative control by the judiciary.

The major controversies are matters of common historical knowledge: the clash over slavery in the territories in the years before the Civil War; the controversy over congressional management of Reconstruction; the battle between the Progressives and the courts over social welfare legislation; and, of course, the New Deal crisis.

The true conservative would hesitate before cheerleading for the next Civil War, Reconstruction, or New Deal crisis. But not Gingrich.

* The Civil Rights Era is no counterexample to this, I’d argue, because the Court was at the mercy of popular forces, and did encounter steep resistance to its assertions of supremacy.



  1. […] he’s right that Newt’s jurisprudence isn’t conservative.  As always, you read it here first. GA_googleAddAttr("AdOpt", "1"); GA_googleAddAttr("Origin", "other"); […]

  2. […] into his map collection all he’d like, but some of us have dead horses to beat. I mentioned earlier that one of Newt Gingrich’s strategies for, as he would have it, “bringing the courts […]

  3. […] the eminently conservative Newt Gingrich has suffered a personal Pearl Harbor:  Leading Republican presidential candidate […]

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