Thursday, October 13, 2011

Newt responds to CBS "legal analyst" Andrew Cohen

Gingrich rejects this theory of judicial supremacy that Cohen restates, which holds that interpretations of the Constitution are binding interpretations on the other two branches. If the Supreme Court renders decisions that the President and Congress believe are unconstitutional, then Gingrich believes the executive and legislative branches are bound by their oaths of office to use their constitutional powers to check and balance unconstitutional decisions of the Court.


In his piece, Cohen quotes Harvard Law Professor Laurence Tribe, who said that Gingrich’s ideas represent a “frontal assault on the independence of the federal judiciary, which is a bulwark of a constitutional system that has served us well as a nation ever since Marbury v. Madison.”

First off, citing Marbury v. Madison as the fountain of the Constitutional authority for the powers of the judicial branch is a customary thing that defenders of the model of an all-powerful federal judiciary do. Professor Tribe should and certainly does know better. The Supreme Court defining the parameters of its own authority in its own judicial decisions is no different than Congress defining their Constitutional authority from a joint resolution passed by both Houses of Congress, or the President defining his/her Constitutional authority via an executive order. Thus, the text of the Constitution and the writings of the Founders must be consulted for a meaningful answer about the powers of the federal judiciary. Otherwise, the Supreme Court derives its authority from its own opinions of its authority.

President Thomas Jefferson and Congress abolished over half of all federal judgeships after the election of 1800. Article I, Section 8 empowers Congress to create lower federal courts, which implies the power to abolish them. The Supreme Court in Stuart v. Laird implicitly acknowledged the judicial branch’s acceptance of the constitutionality of abolishing lower federal courts.
There is much more in the piece posted at Go check it out.

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