Sunday, October 9, 2011

Newt: "The Root-and-Branch Candidate"

(Thank you to Gary Moss for passing along this article.)

Below the title of the article is the line: "Gingrich doesn’t want to beat just Obama, but statism, too." (An interesting side note is that Sarah Palin likes to use root-and-branch imagery a lot.)

Some excerpts:

[Gingrich] knows how to play the game, but he has always had his own very strong ideas about how it ought to be played — and he has been the smartest guy in the room enough times to realize counterrevolutions are not impossible, even if the conventional wisdom says so.

Newt will never be the safe candidate. But he could be the root-and-branch candidate. And the branch he is currently targeting for deracination is the federal judiciary. In his “21st Century Contract with America,” a bold action item is: “Bringing the courts back under the Constitution and the rule of law.”

And bold it is. For more than a half-century, it has been monotonously proclaimed that the judges are the last word on what the law is, and, therefore, that not only the litigants in the case but the whole of society must yield to their decisions. It has become easy to forget — or to have never known — that it was not always this way. As Gingrich argues in a position paper he rolled out with a speech on Friday, there is nothing in the Constitution that stands for this proposition. It is a promotion the Warren court gave itself in 1958, in a gambit Stanford Law School dean Larry Kramer aptly described as “not reporting a fact so much as trying to manufacture one.”

If he were elected president, Gingrich promises, he would pursue a series of concrete steps to reestablish the original balance of constitutional power — the balance designed to ensure that Americans decided important affairs of state democratically rather than having decisions imposed on them by unelected lawyers. In passing laws, the political branches would make use of Congress’s constitutional authority to deny courts jurisdiction to hear categories of cases, something about which progressives will no doubt least until someone catalogues the provisions to avoid judicial review that are written into the Obamacare statute.

Following the example of President Jefferson and the early 19th century Congress, Gingrich foresees the political branches’ eliminating courts that consistently attempt to rewrite the laws and impose their personal predilections. In particularly egregious cases, judges could be impeached for ignoring the Constitution and failing to heed the legitimate prerogatives of the political branches. Congress could use its power of the purse to defund enforcement of lawless rulings, and the political branches could ignore them -- as they did in the Civil War era with respect to aspects of the notorious Dred Scott decision. We could go back to the Lincoln formulation, which conceded the binding nature of judicial rulings on private litigants in a particular case but denied that these rulings operated as precedents binding on the American people and their elected representatives.
Here is the link to the full article again.

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