Separation of Powers is sooooooo 18th Century

Good or bad, this is what you get with Newt Gingrich:

GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.

Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.

When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.

“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”

Gingrich cites the 9th Circuit’s decision that reciting the Pledge of Allegiance is unconstitutional as a prime example of why such a reform would be necessary.  It’s easy to use examples like this of judicial indiscretion in order to justify such drastic action.  Yet what of judicial interventions where the Court and not the legislature is acting in accord with the Constitution?  I can think of several examples where conservatives cheered – rightfully – when the Supreme Court overturned an act of Congress.  In US v Lopez, US v. Morrison, and Citizens United v. FEC, just to name a few cases, the Supreme Court acted on the side of the Constitution as opposed to Congress, and did so presumably against the majority will.  As we speak the Supreme Court is set to hear arguments about the individual mandate and other aspects of Obamacare, and once again conservatives (again rightfully) will be hoping for the Court to rule against the democratically elected branches.

No one is more aware than me of how out of control the judiciary has been, particularly since the age of FDR.  What Gingrich and other populist-conservatives fail to appreciate is that the judiciary’s wholesale assault against the Constitution is but a symptom of what plagues this Nation.  After all, how did we wind up with a judiciary willing to disregard the Constitution?  They didn’t just appear out of magic.  Years of progressive education instilled these judges with an attitude that the Constitution is a “living, breathing” document that ought to bend to the whims of the age.  More importantly, it was democratically elected leaders like FDR who put these men and women on the courts.

Furthermore, it is odd to suggest that one of the ways to stop the politicization of the judiciary is to further politicize the judiciary.  Will judges act as independent arbiters of the Constitution if they know they are going to be hauled before the legislature for making the wrong call?

Long story short, I don’t think Gingrich is entirely wrong to highlight the problems of the judiciary.   It absolutely must be a theme of this and any federal campaign.  But Gingrich is missing the forest for the trees in singling out the judiciary when it’s an entire political philosophy – and, for that matter, political party – that is the problem.

Another thing that strikes me about this statement is how unrealistic it is.  Even if Gingrich becomes president and has resounding Republican majorities in both Houses there is virtually no chance that anything like this will happen.  This is mere bombast.  Now, it is perhaps an exercise in rhetorical exaggeration used to highlight an important issue.  But ultimately this reveals a problem that goes beyond Newt, and it is the absurdity of our presidential campaign system.  Each candidate feels compelled to offer pie in the sky proposals in an effort to appeal to some constituency.  Even more troubling is that the underlying attitude is that the president is some kind of emperor as opposed to the chief executive of a constitutional republic.  Even though this particular proposal is likely going nowhere, it is a sad fact that the presidency has become a hyped up institution that has grown well beyond the powers outlined in the Constitution.  So the ultimate irony is that while Newt is proposing a radical plan under the guise of restoring balance to the Constitution, he is only furthering the imbalance of the Constitution and the respective powers of each branch of government.  And while the Star Wars prequels may have been otherwise useless, at least they taught us a valuable lesson about trying to “restore balance” to anything.

31 Responses to Separation of Powers is sooooooo 18th Century

  • So… steroid use in a private enterprise, subpoena away, but a judge rules dogs are persons while fetal humans aren’t, and no explanation is needed. *wry smile* I know you’re probably totally legally correct, it just strikes me as funny; either it’s a punitive type thing, in which case why can it be applied to normal people who haven’t done a crime, or it’s supposed to be an information thing, in which case loonie judges have a special right to not answer questions. (Unlike, say, managers of large businesses.)

  • (I have got to get around to writing that difference-between-fair-and-right post on parenting.)

  • I’m probably the worst person to use the steroid example with because I thought that whole affair was farcical.

    Obviously Congress should have the authority to investigate criminal malfeasance in the other branches, and impeachment for corruption and criminal matters is an undeniable right. But if Congress should start digging around on what are matters of interpretation, then you’re butting up against the separation of powers.

    That being said, it’s also true that the judiciary should not be treated as the final arbiter of what is and is not constitutional, and I should have emphasized that in the post. Congress should have some oversight authority – but to be honest I’m not one hundred percent certain how far they should go. Gingrich’s proposal goes too far in one extreme, but maybe at least it’s the germ of an idea that prompts more cooperation.

  • Of all branches, Congress has been the most deferential to judicial decisions. By intent, of course – they want to leave the unpopular calls to those who do not need to fight for re-election. Congress could perhaps use its impeachment power a little more for truly off-the-wall decisions, but then individual Congresscritters would have to take a public stand, wouldn’t they?

  • I’m probably the worst person to use the steroid example with because I thought that whole affair was farcical.

    Why I used it, actually. I’m sure there was a perfectly reasonable series of events that resulted in it… but DANG.

    C Matt’s response seems reasonable…though unlikely.

    Shouldn’t there be some sort of way to hit these “I made the ruling because it’s Historic!” rulings?

  • If any Republican is elected president, Kennedy will retire, Roe will be overturned, and all talk of reshaping courts will dissipate.

  • The Founders did what they could to block the effects of “Original Sin” – even if they did not name it such- by separating the three powers of government, based on their 18th century experience of the Old Country and their own there in the Colonies with the Monarch George 111. We shall continue to see the pendulum swing and the seesaw teeter-totter as each branch grabs power or tries to correct the imbalance ofthe other , as that branch sees it. The “unredeemed” – those who have not addressed the Dragon living in the dark recesses of our own cave, and making a pact with it – will not bring peace if they have no peace and will only create or perpetuate a system whereby the Dragons will roar and puff smoke and fire.

  • I find striking that Americans talk incessantly about judicial overreach but don’t even twitch at the forays into Congressional authority by the Executive Branch. Yes, the Judiciary needs to stay in its own turf but it is the general assault on liberties through the Codes of Federal Regulations, agency memoranda, and Executive Orders that most frighten me.

  • but it is the general assault on liberties through the Codes of Federal Regulations, agency memoranda, and Executive Orders that most frighten me.

    Yes, yes, a thousand times YES! Every administration has been bad in this regard, but the current one seems to view the Constitution as nothing more than an inconvenience to be ignored.

  • I find striking that Americans talk incessantly about judicial overreach but don’t even twitch at the forays into Congressional authority by the Executive Branch. Yes, the Judiciary needs to stay in its own turf but it is the general assault on liberties through the Codes of Federal Regulations, agency memoranda, and Executive Orders that most frighten me.

    I must run in odd circles… I’ve been hearing a LOT about this, for years. Of course, I also have lived in places that took the brunt of the “endangered species act” type stuff, including a nice little old retired couple that lost the right to use their home because they refused to kill the endangered bird that was living there before he was spotted.

    People complain about what touches them.

  • Your observation about noticing what touches you is well placed. I never imagined that freedom of religion would be an election issue for me but it will be so in 2012.

  • In Planned Parenthood v. Casey, Justice Scalia summed up what is wrong with the modern judiciary:

    “What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante, at 943.”

  • I disagree with G-Veg and Paul. While I disagree with many executive orders and regulations as a matter of policy, rarely do I see them as an unconstitutional encroachment on another branch’s powers or unconstitutional at all. To me this is just the conservative’s expression of the same conceit normally held by the Left, which is if I disagree with something it must be unconstitutional. While the Framers (most of them anyway) may not have envisioned or preferred a large and intrusive federal government, they embedded that possiblity via the commerce and necessary & proper clauses. Perhaps the Framers employed imperfect language given their intentions, but words have consequences.

    I do agree with Donald regarding the Supreme Court. Of the three branches, this so-called (by Hamilton) “least dangerous branch” has been the most mischieveous for the reasons outlined so well by Justice Scalia. In my view the Framers did not anticipate the inevitability and implications of Marbury v. Madison and for that reason did not properly foresee the need for more effective constitutional checks against Supreme Court misbehavior.

  • Mike,

    There is no constitutional justification for many of the actions and guidelines put forward by the likes of the EPA and other elements of the bureaucracy. Granted, Congress is partly to blame for abdicating responsibility, but these agencies have accumulated vastly more power than what was envisioned even by the legislators who okayed them coming into existence.

    While the Framers (most of them anyway) may not have envisioned or preferred a large and intrusive federal government, they embedded that possiblity via the commerce and necessary & proper clauses.

    The misinterpretation of the commerce clause and the 14th Amendment has been carried out equally by all three branches. That the Framers did not predict how horribly future generations would twist the plain meaning of the constitutional text is no fault of theirs. We now have a president who really doesn’t even pay lip service to the document. This isn’t a matter of just disagreeing with policy. Oh, sure, the administration’s policies are awful – it just so happens that a lot of what this administration does doesn’t come close to passing constitutional muster.

  • The fear was expressed when the Leislatures’ term limits were voted by the people that the bureaucrats in the several states would have too much power. I am no longer liivng in the USA but I feel that, at the federal level, one term of five years for a POTUS and severe restrictions on the number of terms for serving in Congress, two years is too short for the cost of re-election today for the House would help. The exorbitant cost today, the heavy reliance on lobbyists’ gifts and the Supreme Court decision to not limit corporate donations, and allow them anonymously as “fictional” persons has destoyued the idea of a democratic republic.

  • Paul,
    We’ll just have to disagree with the plain meaning of the commerce clause. While you may well be right as to its “intent” (though discerning the intent of a legislative-type body is tricky stuff to say the least), the plain meaning strikes me as quite expansive unfortunately, and plainly broad enough to justify the Congressional creation of the EPA as well as its empowerment to promulgate regulations.

  • FR FRANCIS,
    Or we could employ the Illinois term limits model: one term in office followed by one term in prison — seems to working ok.

  • and the Supreme Court decision to not limit corporate donations, and allow them anonymously as “fictional” persons has destoyued the idea of a democratic republic.

    Huh?

    You mean the case where they ruled you can’t censor a movie because it has political content?

  • Foxfier, I believe he’s talking about Citizens United.

    Because, as we all know, constraints placed on campaign donations have worked such incredible wonders. /sarc

  • With respect Mike, I think Administrations directly and unconstitutionally encroach on congressional prerogatives all the time. The previous administration did so in its war on terror and the present on its war on faith. I believe that most of the New Deal and of the War Powers Act are direct assaults on the Separation of Powers and, thus, on the Constitution.

    It may well be within Congress’s authority to declare citizenship and nationality to be factors that must be considered in making visa decisions. It most assuredly isn’t the Administration’s role to add levels of review beyond those established by Congress. It may well be among Congress’s powers to tax and spend to sure up the economy. It most assuredly isn’t among a President’s powers to levy new taxes.

    It is not within either of their powers’ to abrogate the First Amendment of the Constitution of the United States.

  • I read that ILL joke recently. No one as I said in my first post has a system to overcome greed, power and other addictions that tend to destroy humans and our instiutions. Original sin gets us all.
    I do not understand the “HUH” comment re the corporate donations. Did I misunderstand the ddecision ?

  • I do not understand the “HUH” comment re the corporate donations. Did I misunderstand the ddecision ?

    I’m afraid you did, yes; I suspected you meant CitUnited, since the way you phrased it is in line with the lib spin, but wasn’t sure.

    Short summation: the government side argued that there was nothing legally wrong with censoring a movie, or book, because of political content. They’re not centrist by any means, but this article has enough stuff for you to find more, if you like. Sorry I can’t find a better source, cleaning house.

  • Thank you. I squirmed when you suggested I am a lib! Shall research that further, thanks for taking the time to reply.

  • Whoops, looks like Foxfier was right about the case FR Francis was referring to. My bad.

  • Thank you. I squirmed when you suggested I am a lib! Shall research that further, thanks for taking the time to reply.

    No insult intended! Seeing as I class most of the media as lib, and that’s all I hear out of them, it’s not really indicative of anything but not having heard about the gov’t lawyer actually telling the supreme court “sure, we could ban a book because it’s got political content.” (Part of why I mock Banned Books week is that there was NOTHING on that that I saw….)

    Point of blogs, no?

  • I think that Gingrich’s position is a little bit different. From the Face the Nation transcript, it looks as if he was talking about making judges testify in the context of impeachment proceedings. He was talking mainly about each branch’s responsibility for obeying the Constitution. His choice of examples presumed that the listener would understand that Dred Scott was wrongly decided – and maybe that was a mistake on his part. He could have made it clearer that Dread Scott was both manifestly wrong and Constitutionally wrong.

    So I get Paul’s point. But as a practical matter, if a Southern Republican said that the Dred Scott decision was narrowly wrong, he’d be run out of town.

  • There is no constitutional justification for many of the actions and guidelines put forward by the likes of the EPA and other elements of the bureaucracy. Granted, Congress is partly to blame for abdicating responsibility, but these agencies have accumulated vastly more power than what was envisioned even by the legislators who okayed them coming into existence.

    1. The budget for composing and enforcing federal regulations (as opposed to the federal police and prison services or tax collection) is generally quite small. (~$20 bn) This is somewhat obscured because agencies like the FCC and EPA have dual mandates which encompass regulations, patronage, and works projects. (About a tenth of the budget of these two is devoted to strictly regulatory tasks).

    2. Techological adaptation has been such that an escalating proportion of transactions occurs between parties in different states. In addition, effluvia can injure whole watersheds or be transported in currents which do not respect state jurisdiction.

    3. A notable exception to the above concerns aspects of labor relations and retail trade. A great deal of what goes under the heading of ‘civil rights legislation’ would not survive a rectification of jurisdictional responsibilities. Sounds like fun.

    Should note Robert Bork’s observation that the culture in the legal profession and the haut bourgeoisie is such that judicial review is no longer compatible with self government. He is right.

  • I had not left the USA when that decision was announced by the ” Supremes.” I do recall when 44 broke protocol to chastise them in the State of the Union message and my hero Scalia showed disapproval. I should have pursued it then. Glad to be enlightened, I read the summary online.

  • “I think that Gingrich’s position is a little bit different.”
    -Pinky

    Much media spew “is a little bit different” from reality.

    Media mouthpieces have been busted passing untruths about Gingrich on numerous occasions, this is another.

    One can always count on the Establishment Media to be a source of error about the Church; I see I must add Gingrich to the list of subjects on which they cannot be trusted.

  • ME:

    Please name one subject wherein the media’s definition of “news” is NOT that distortion, distraction, exaggeration, fabrication, misdirection, omission which serves the regime’s war against our liberties and our property/pursuit of happiness.

  • TS-
    kitty rescues?
    *considers*
    Never mind, just remembered my city has no-warrant searches by anyone authorized by the animal control agency if you’ve got a registered pet, to protect the fluffy kitties.

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