Newt Gingrich’s constitutional heresy

Bruce Fein Constitutional Lawyer
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Newt Gingrich is to the Constitution what the Renaissance popes were to the Bible.

Take, for instance, Gingrich’s zany enthusiasm for summoning federal judges before Congress to defend allegedly wayward constitutional interpretations.

Alexander Hamilton in Federalist No. 81 elaborated on the lunatic belief that legislators would be fit to review or evaluate judicial decisions:

There is an absurdity in referring determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill-consequences of defective information, so on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction will poison the fountains of justice.

The ordinary member of Congress is clueless about the very sinews of the Constitution: due process, habeas corpus, separation of powers, freedom of speech, the Establishment Clause, the Fourteenth Amendment, the prohibition on unreasonable searches or seizures, war powers or the enumerated powers of Congress. Members have not read the notes of the Constitutional Convention of 1787. They have not read the state ratification debates. They have not labored over the Federalist Papers. They have not read seminal decisions of the United States Supreme Court. They generally do not read legislation they vote to approve or oppose, like the Patriot Act. House Speaker Nancy Pelosi responded to a question about the constitutional authority for the Affordable Care Act by asking the questioner, “Are you kidding?” She apparently doesn’t realize that Congress is endowed with limited powers.

Members of Congress are as ill-suited to examine federal judges about constitutional interpretation as they would be to question Albert Einstein about theories of relativity. Further, members’ constitutional views are like restricted railroad tickets — good for this day and train only. When a Democrat is in the White House, Republican members of Congress believe presidential wars are unconstitutional, but vice versa when a Republican occupies the Oval Office. The converse is true of Democratic members. Ditto for questions about recess and other presidential appointments, executive privilege, state secrets, delegation of legislative power, etc.

Republican members generally exhort federal judges to strike down laws establishing racial or gender preferences, restricting gun ownership, invoking eminent domain to attract private investment or compelling the purchase of health insurance. But they denounce judicial decisions invalidating laws that restrict abortions, prohibit homosexual sodomy, promote religion or suspend habeas corpus. Democratic members generally voice the converse hypocrisy. In sum, members of Congress — in violation of their oaths of office — customarily tailor their views of the Constitution to advance a partisan political agenda, not to honor the intent of the Constitution’s makers as understood by the nation.

James Madison, father of the Constitution, explained:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

And not a single member of Congress could pass a test on the meaning of the Constitution’s text as understood by the people of the United States when the document was drafted, debated and ratified. In their hands, the Constitution would degenerate into a mere homonym of the authentic document: it would sound the same, but mean something different.

Should the presidency be entrusted to a candidate who believes such a constitutional revolution without constitutional amendments would be a great thing?

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