As historian Newt Gingrich sees it, the American people are suffering “a fundamental assault on our liberties by the courts.” Unless we fight back against this “grotesquely dictatorial” judiciary, our nation is destined to slide toward “a secular, European sort of bureaucratic socialist society.”
More specifically, Gingrich argues that the liberal Ninth Circuit Court of Appeals has proved itself to be “anti-American” and thus has forfeited its right to exist. Congress, he says, should simply pass a law to abolish the court altogether, false concerns about “separation of power” be damned.
Gingrich also proposes to haul a series of federal judges before Congress where they can be forced to defend unpopular decisions. As he explained in an appearance on “Face the Nation” Sunday, he would even empower federal marshals to arrest any judges who refused to heed congressional demands for testimony.
According to Gingrich, such steps would have been applauded by our founding fathers, who feared from the beginning that unelected judges would become a tyrannical ruling class. He and his aides lay out that theory, complete with its alleged historical underpinnings, in “Bringing the Courts Back Under the Constitution,” a 28-page white paper available at the Gingrich campaign website.
Those who take the time to read the paper will find that it is less the work of Newt’s inner historian than of Newt’s inner fascist. It represents a profound distortion of our nation’s history, the writings of our Founding Fathers and the basic core of the American philosophy of government. It is dishonest history.
Consider, for example, Gingrich’s underhanded, deceptive attempt to draft Alexander Hamilton as an supporter of his anti-judicial crusade. Using selected quotes from the Federalist Papers, Hamilton is depicted by Gingrich as a supporter of efforts to use the legislative and executive branches to rein in a tyrannical, overbearing judiciary.
That is a 180-degree reversal of Hamilton’s actual position. He saw the courts as vulnerable guarantors of freedom whose independence must be preserved at all costs against the likes of Gingrich.
In Federalist Papers #78, for example, Hamilton writes that the judiciary “is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.”
In other words, while Gingrich proposes to undermine judicial independence, Hamilton warns us to take “all possible care” to ensure that the judiciary is protected against such attacks.
The debate between Gingrich and Hamilton goes on and on.
“A judicial branch that is largely unaccountable and not subject to meaningful checks and balances can — and does — routinely issue constitutional rulings that threaten individual liberties, compromise national security, undermine American culture, and ignore the consent of the governed.”
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution…. 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.”
Gingrich denies that “the Constitution empowered the Supreme Court with final decision-making authority about the meaning of the Constitution.” Hamilton, in the excerpt cited above, explicitly says otherwise.
Gingrich proposes that judges must be kept in fear of their jobs through such steps as impeachment and the abolition of courts that offend public opinion. Hamilton warns that “from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”
But here’s the crux of the issue. It is a commonplace within the conservative movement to point out that “we are not a democracy, we are a republic.” In plain terms, the saying makes no sense; a republic is a type of democracy, just as an orange is a type of fruit.
That said, the phrase does attempt to express a larger and fundamental truth. We are not a democracy in its purest form, in which the majority can outvote the minority on every issue without regard to individual freedom. We exist under a limited government, a government of laws not of men, where the power of the majority is constrained. “A republic, not a democracy” is intended as an endorsement of that principle.
As we’ve seen, however, the majority does not like to feel itself constrained. It gets frustrated when it is told that on matters of fundamental importance, such as religion and free speech, the viewpoint of the majority does not matter because, well, we’re a republic not a democracy and certain things are off limits to the majority. And it is usually the courts that have to deliver that unwelcome message to the majority.
As Hamilton wrote:
“Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”
That final sentence — ” … the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress” — seems directed across the centuries right at Gingrich.
– Jay Bookman