Sunday, December 18, 2011

Newt's Odd Understanding of the US Constitution

One doesn't need to look any further than Newt Gingrich's exception to his rule to see the absurdity of his claim that he'd simply ignore US Supreme Court decisions with which he didn't agree, and that he'd consider abolishing some courts or impeaching other judges with whom he didn't agree.

That's not a separation of powers argument; it's a tremendous overreach and one that's ripe for tremendous abuse.
As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

Relying on those precedents, Gingrich said that if he were in the White House, he would not feel compelled to always follow the Supreme Court's decisions on constitutional questions. As an example, he cited the court's 5-4 decision in 2008 that prisoners held by the U.S. at Guantanamo Bay, Cuba, had a right to challenge their detention before a judge.

"That was clearly an overreach by the court," Gingrich said Saturday. The president as commander in chief has the power to control prisoners during wartime, making the court's decision "null and void," he said.

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in "extraordinary" situations.
So, using Gingirch's standards, if President Obama considered the ruling to be an extraordinary situation, the President could simply ignore the Court's ruling so as to continue the health care reform package even if the Court found it unconstitutional? The howls that would come from the GOP and the conservative base that Gingrich is courting in the 2012 election season would never be louder than if the President simply ignored a court ruling the health care law was unconstitutional because the President simply thought that the health care law was an extraordinary situation. He'd probably be the first to claim that President Obama should be impeached for ignoring the Court.

Moreover, this is yet another blow to the Court's power of judicial review, which puts the Court in the position of deciding what is constitutional and what isn't.

Now, judicial review doesn't mean that the Courts are infallible or that they always make the correct decisions. After all, the Court found that slavery was acceptable before the Civil War and that it approved of actions that were later found to be unconstitutional (see Brown v. Board of Education, for example).

Meanwhile, Gingrich thinks that the Constitution doesn't provide for a right of same-sex marriage. A Court would be justified by the plain language of the Constitution to allow for same-sex marriage because the 14th Amendment requires equal protection under the law using the same kind of rationale as used in Brown and its progeny.

In other words, not only is Gingrich a poor historian, but an even worse scholar when it comes to constitutional matters. But he's shrewd enough as a politician to know that the GOP base he's courting would like to see policies it doesn't like eliminated one way or another, even if it means ignoring longstanding powers of the Courts or a vast expansion of presidential power (but only when held by the "right" people.)

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