Newt Gingrich: Tribune of tyranny

Bruce Fein Constitutional Lawyer
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Republican presidential candidate Newt Gingrich champions presidential tyranny, not constitutional government enforced by judicial review. He would have sided with King George III against the Founding Fathers on making judges dependent on his will alone. In the Oval Office, Gingrich would coronate himself emperor like Napoleon, and scorn subordinating the presidency to the rule of law. If you adore Russia’s Prime Minister Vladimir Putin, you would love a President Gingrich.

The crown jewel of the Constitution is a Supreme Court whose justices have life tenure and are empowered to hold unconstitutional and invalid acts of the president, Congress or the states. Otherwise, constitutional limitations would be toothless. No political body in the history of the world has ever renounced its own handiwork as illegal.

Conservative former Chief Justice William H. Rehnquist maintained that judicial independence was “the crown jewel of our system of government.” Alexander Hamilton observed in Federalist 78:

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.

James Madison, father of the Constitution, defended the Bill of Rights in Congress by remarking:

If [the Bill of Rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

Chief Justice John Marshall explained in Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.” In 1805, the Senate acquitted (by an overwhelming margin) a sitting Supreme Court justice, Samuel Chase, of making biased and erroneous rulings. The acquittal established the time-honored principle for more than two centuries that federal judges may not be removed for alleged misapplications of law or misinterpretations of the Constitution. The remedy for judicial error is to ask the Supreme Court to overrule a misconceived precedent (which has succeeded in 200 cases), or to amend the Constitution (which has been done on five occasions to trump Supreme Court interpretations).

In sum, the Constitution requires the president or Congress to honor Supreme Court decrees in particular cases. Thus, President Abraham Lincoln, in his first inaugural address, explained that he would not defy the Supreme Court’s odious decree in Dred Scott v. Sanford holding that blacks were not citizens of the United States because defiance would breed more legal mischief than it would cure:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

When President Franklin Roosevelt sought to manipulate Supreme Court decisions through an ill-conceived court-packing plan, he was sharply scolded by Congress and the American people. His proposed legislation shipwrecked in the Senate.

With more than two centuries of history and constitutional practice against him, Newt Gingrich has thrown a Molotov cocktail against the rule of law in his intellectually reckless and bankrupt presidential campaign. He claims the president enjoys constitutional power to flout any Supreme Court decision that the president asserts is erroneous and extraordinary — even when the president is the losing party!

During a conference call with reporters on December 17, 2011, Gingrich maintained that as president he would flout the Supreme Court’s Boumediene v. Bush (2008) ruling that alleged enemy combatants imprisoned for life at Guantanamo Bay without accusation or charge had a constitutional right to seek federal judicial review of the legality of their executive detentions. Gingrich amplified: “That clearly was an overreach by the court.” He argued that the president, as commander in chief, has the power to control prisoners during wartime, making the Boumediene decision “null and void.”

Apparently, Gingrich did not read the Supreme Court’s opinion in Boumediene, because the question presented was not whether the president is empowered to control prisoners, but whether the president can unilaterally designate any person in the world (including American citizens) a prisoner and imprison them for life based on secret facts. If there is any better definition of presidential tyranny, it does not readily come to mind.

Gingrich pledged that he would confine his defiance of Supreme Court decrees to “extraordinary” occasions. But he balked at defining that key word beyond Justice Potter Stewart’s legendary definition of obscenity: “I know it when I see it.” He suggested he would flout recognition of a constitutional right to same-sex marriage, and elaborated: “The Constitution of the United States has absolutely nothing to say about same-sex marriage.”

Of course, the Constitution also says nothing about presidential power to ignore Supreme Court rulings, state secrets, presidential wars, executive privilege, executive orders, executive agreements or presidential signing statements, all of which authorities Gingrich salutes.

Gingrich’s amateurish bombing of the Constitution would sound the death knell to the rule of law. Under such a system, President Bill Clinton could have ignored Supreme Court decisions sustaining Paula Jones’s sexual harassment lawsuit and nullifying his line-item veto authority, President Richard Nixon could have defied the Supreme Court’s decree mandating the disclosure of presidential papers and tapes in the Watergate cover-up trial and President Harry Truman could have seized private steel mills or other militarily sensitive plants during the Korean War in violation of the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952). And Gingrich’s theory of presidential omnipotence invites President Obama to ignore any Supreme Court ruling invalidating his signature health care law or the redistricting of congressional seats by the Texas state legislature.

And if the president can defy court decrees, why should any private citizen obey? Justice Louis D. Brandeis warned against the frightening implications of government lawlessness in Olmstead v. United States (1928):

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example … If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

In closing, I cannot improve upon an adaptation of Oliver Cromwell’s plea to the British Long Parliament in exhorting Newt Gingrich: “You have been in the presidential race too long for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!”

Bruce Fein is senior policy advisor to the Ron Paul 2012 presidential campaign.