Andy McCarthy on Newt

The Root-and-Branch Candidate
Gingrich doesn’t want to beat just Obama, but statism, too.

The question is simple but profound: Will the 2012 presidential-election campaign be about big ideas? Ideas like whether the American people are still masters of their own destiny or instead have resigned themselves to a rule of lawyers advertising itself as “the rule of law”?

To push these fundamentals to the fore is the rationale of Newt Gingrich’s candidacy. If ever there were a big-ideas guy, it’s the former House speaker. Ideas seem to churn out of him faster than the Treasury churns out greenbacks for “green energy.” But do we want to think about them? Newt believes we do — perhaps not so much that we want to but that we have to think about them, if we are to remain an America that is worth preserving. He is also a historian uniquely sensitive to a unique historical moment.

The Obama years have pushed the accelerator on what had been a long, inching slide into the progressive abyss. For three-quarters of a century, statism was a Fabian project. It was reminiscent of what Jefferson, explaining his fear of the federal judiciary’s gradual imperialism, described as “working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all consolidated into one.”

Bucking this trend, President Obama has leapt way ahead to the endgame: a blizzard of unaccountable czars, nationalized sectors, suffocating regulations, and redistributed trillions. The result is economic stasis, massive unemployment, crony socialism, and the hovering prospect of punishing taxes, crippled productivity, mounting social unrest, and a loss of liberty so dramatic one actually notices that it is happening. Americans have now seen the future, and, in growing numbers, they are horrified by it.

In addition, after three years of watching congressional Democrats slavishly toe the line — watching spectacles such as majority leader Harry Reid’s decision to blow up time-honored Senate parliamentary rules just to avoid taking a vote that would embarrass the president — Americans are also grasping that what makes Obama and his Occupy Wall Street base “radical” is mainly their impatience. They want — right now — the end of history that the progressive establishment has heretofore been content to crawl toward, inch by cautious inch.

One of the few virtues of Obama’s pedal-to-the-metal approach is that it forced Democrats to choose sides. They’ve chosen him over a public that repeatedly shows it does not want what he’s redistributing. In the 2010 elections, that choice proved catastrophic for Democrats, but the rout hasn’t mattered. They’re still with him, because they accept his premises even if they’re not crazy about his pace. That illustrates that the trajectory we’ve been on since the 1930s leads inexorably to where the Obama Left wants to go. There is a reason why Bill Buckley yelled, “Stop!” — not “Slow down!” — as he stood athwart history.

So here is the dilemma: We have a moment in time in which it is possible to demonstrate, starkly, that statism does not work, and therefore that it ought to be removed root and branch. That argues not only for dumping Obama but also for rolling back the tide of which Obama is merely the most destructive wave. On the other hand, Obama is uniquely destructive. Therefore, the GOP Beltway Bible instructs, our priority is to come up with a safe candidate — one who is smooth enough to fade into the woodwork and make the election solely about the president. This is no time to scare people, the pros tell us. Let’s not get independents fretting about some conservative counterrevolution.

Newt Gingrich has a wealth of GOP establishment ties, but he is not the GOP establishment guy. He 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. Yes, ideas do pour out of him prolifically, and — law of averages being what it is — every now and then they are clunkers. But while such dalliances on health care and climate change make conservatives wince, we also should realize that, most of the time, nobody does it better. Certainly no American politician says the things that need to be said more convincingly.

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.”

In his famous Marbury v. Madison opinion, Chief Justice John Marshall reasoned that it was the task of judges to say what the law is. This was not, however, the declaration of “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” — the lavish gloss the Warren court put on it in Cooper v. Aaron. Indeed, Jefferson was far from alone in concluding that “to consider the judges as the ultimate arbiters of all constitutional questions” was “a very dangerous doctrine” that “would place us under the despotism of an oligarchy.” Lincoln, too, perceived the peril to popular sovereignty: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” he pointed out, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

The framers believed neither that the courts were supreme nor that the political branches accountable to voters were somehow relieved of the obligation to consider the constitutionality of government action. They thought the judiciary would be the least dangerous branch because its only asset was judgment — it had no capacity to enforce its own rulings, and it was beholden to Congress, which could place severe limits on its jurisdiction and disestablish any lower courts it had chosen to create. Because the three branches were taken to be coequals, it was thought obvious that two joining together could undo the excesses of one.

It was thus never meant to be the case, Gingrich contends, that outrageous Supreme Court rulings could be reversed only by amending the Constitution. He makes a stark case that the very notion is absurd. The arduous amendment process requires the approval of supermajorities of Congress and the states. Yet a Supreme Court ruling that cannot be overcome because of these daunting democratic hurdles can be reversed, in the bat of an eye, by a later Supreme Court ruling — by the vote of a single, politically unaccountable justice in a 5–4 decision.

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 shriek . . . at 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.

It is an interesting, provocative argument — one that makes you think things do not have to be the way they are if we have the will to make them the way they were intended to be. That is to say, it is Gingrich at his best. His best is a force to be reckoned with. Here’s hoping that the safe candidates will be asked to reckon with his big ideas.
—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.