Not Feeling it for Newt

Newt Gingrich is not a fan of judicial review, and thus takes up one of most insidious conservative crusades I just find utterly lamentable. If anything, I believe the courts don’t do enough to reign in the other two elected branches of government. Keep in mind the courts have no power to make law, only to interpret it, which includes the Supreme Law, known as The Constitution. Unfortunately, over the course of the post-New Deal period, the Court has done much to undermine its own legitimacy. Professor Glenn Reynolds notes:

On the other hand, who can seriously argue that the constitutional law that comes from the Supreme Court is in fact very closely related to the text of the Constitution itself? I mean, if the Court were doing such a great job, would we see strange bedfellows arguing for a constitutional reset? Indeed, I was talking to a fellow lawprof the other day, and one who’s certainly no right-winger, who said he’d hate to have to teach Constitutional Law because of the hash the Supreme Court has made of things over the past 50 years or so. I was surprised to hear that, but it suggests a certain shakiness to current foundations.

I also agree with his conclusions of Gingrich as a candidate. He’s just the latest anti-Mitt. That doesn’t mean he’s got winner written all over him. Glenn Reynolds also notes:

FDR could get away with this because he was much more popular than the Supreme Court. No politician or official today is more popular than the Supreme Court. I doubt a President Gingrich will be either.

This is certainly true, and I consider that a good thing. There’s been several pundits who have called for a “House of Repeal” who’s sole job it is to repeal laws that just don’t make sense, or who are overreaching. I hate to say, it but that’s suppose to be the job of the courts. Since the new deal, they have largely abrogated their responsibility in this realm.

7 Responses to “Not Feeling it for Newt”

  1. N says:

    Indeed. It’s always fascinating to me how ostensibly small government advocates are infuriated when the judiciary won’t let them pass more laws.

  2. Jeff Dege says:

    If you’re buying in to the “SCOTUS is the final arbiter of the Constitution” claptrap, you couldn’t be more wrong.

    Each of the branches has the authority and the obligation to say “this is Unconstitutional, the Government cannot and should not engage in such behavior”.

    Yes, SCOTUS has not been doing enough of that. But the other two branches haven’t been doing it at all.

    • Sebastian says:

      I said final arbiter, not the only arbiter.

      • Harold says:

        If I’m interpreting what you’re saying here correctly, that the Supremes are the “final arbiter” (and if not many hold the view), the concept is demonstrably false and is so even in the original text of the Constitution:

        In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

        Plus of course as the apocryphal Andrew Jackson quote puts it, “John Marshall has made his decision, now let him enforce it!” As a separate and co-equal branch of government I’m not aware of anything preventing this, the remedy if needed is of course impeachment and conviction by the Congress. By design the founders tried to set up a system where the Congress > the Executive > the Courts and viewed the latter with extreme and as we see now well justified suspicion.

        Given all that, of course it’s now part our small c constitution, but I for one think this is something that should be up for serious review and revision. Certainly as even you acknowledge they’ve at best failed their job since the “Switch in time that saved nine.” The majority of Federal judges are all but our sworn enemies when it comes to the RKBA and need we be compelled to obsess so much over the makeup of the Supremes?

        Now, there’s one big exception here: they’ve been somewhat supportive of freedom of speech—heavily qualified because core political speech somehow doesn’t qualify for anywhere near the same level of support as other types—and access to the soapbox keeps us that much further away from having to open the bullet box.

  3. Sage Thrasher says:

    I kind of feel the same way about Perry’s “idea” about the part-time Congress. Uh, Rick, it’s the FIRST branch of government. Wouldn’t it be great to hear a presidential candidate declare he or she would work with Congress to create bills that can pass & do good and also direct the Justice department to review cases on a nonpartisan basis consistent with current court decisions in all cases where they aren’t trying to bring up a case to overturn precedent. Imagine.

  4. Wes says:

    New poll has Newt dropping like a rock and Ron Paul now leading in Iowa. Bad news for the Newt World Order.

  5. Robert says:

    Another problem with the “House of Repeal” idea is that a large part of the new burdens of government are not “laws” per se, but instead “regulations” which are enacted by various agencies (BATFEIEIO, et al).