Submitted by Gene Howington, Guest Blogger
Newt Gingrich made statements this weekend that leave little doubt he would drag the already overreaching Office of the President over the threshold of dictatorship. First, let us be clear about what a dictatorship is: a dictatorship is autocratic rule, control, or leadership; a form of government in which absolute power is concentrated in a dictator or a small clique; a government organization or group in which absolute power is so concentrated. Second, let us be clear that such a concentration of power in a single branch of government is clearly unconstitutional under the Separation of Powers doctrine.
The term “Separation of Powers” is widely attributed to political philosopher of the French Enlightenment, Baron de Montesquieu, but in practice the idea goes back to ancient Greece and the Roman Republic. The idea is that the power of government is not vested in one place to avoid abuses by creating a system of checks and balances. Therefore, a tripartite form of government is created where (roughly speaking) a legislative branch holds the power to make laws, a judiciary branch holds the power to interpret laws and administer justice, and an executive branch holds the power to enforce laws and administer public affairs. In America, the powers of the three branches are determined by the Constitution and precedent such as Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (which clarifies the power of judicial review). Judicial review by an independent judiciary free from political considerations is a power not specifically in the Constitution but considered vital by both Montesquieu and Jefferson. In the Declaration of Independence, one of Jefferson’s specific charges against King George III was that the judiciary wasn’t independent and “made Judges dependent on his will alone.” This is part and parcel of why our Founders integrated the concept of judicial independence into the Constitution by granting judges life tenure and providing for salary protection. Judicial independence removes the fear that judges will be punished by Congress or the Executive for using their Constitutionally granted power in exercising their best judgment to interpret the law. An independent judiciary is critically important because it provides for continuity, stability, and guarantees that disputes can be resolved fairly and impartially in our legal system, free from political considerations. A judges who is constantly looking over their shoulder out of fear they can or will be punished for politically unpopular decisions are less likely to be neutral referees in the cases that come before them and more likely to be political pawns.
That is why it was particularly disturbing what Gingrich said this weekend. In a phone interview with reporters on Saturday, Gingrich said he “pledged to abolish courts and eliminated activist judges he believed were either outside the mainstream or infringing too deeply on the commander in chief’s authority.” He then doubled down in his attack on the Separation of Powers doctrine Sunday on the CBS news program “Face the Nation”. When asked by host Bob Scheiffer, “Let me just ask you this. You talk about enforcing it because one of things you say is if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional but I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol police down to arrest him?” Gingrich responded, “If you had to or you’d instruct the Justice Department to send a U.S. Marshall. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word benediction and invocation? Because before…because then I would encourage impeachment. But before you move to impeachment, you’d like to know why he said it. Now clearly since the congress has the power…”
In a world where the Executive has been claiming ever unitary, and some would say Imperial, powers since the days of Nixon using “executive privilege” as an excuse to avoid judicial oversight in ordering wiretaps, where Bush and Obama administrations have regularly used “national security” as an excuse to impinge on the powers of both the judiciary and the legislative (in various forms well known and discussed in this forum) as well as the Constitutional rights of citizens, Newt has finally and openly brought politicization and naked intimidation of the judiciary into the far Right’s arsenal in their continued attack on the Constitution. By saying that he as President would have the power to arrest judges he personally and politically disapproved of, Gingrich is embracing the very sort of dictatorial tyranny that Jefferson was addressing in the list of grievances against King George III that Jefferson incorporated into the Declaration of Independence. That this assertion clearly violates the Separation of Powers doctrine is without question, although I’m sure some will try to rationalize it away. Gingrich’s statements have drawn criticism from both the left and the right. As Michael W. McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by Bush, said, “You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it. You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.”
What do you think?
Source(s): CBS News – Face the Nation 11/18/11, Huffington Post, Washington Post
~Submitted by Gene Howington, Guest Blogger
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Steve W.,
“According to Gingrich, the judge would have no problem putting the superindendent in jail ‘over the word benediction and invocation’. If this is true, and no one has refuted it”.
I not only refuted it, I showed you the specific logic and legal reasoning that refutes Schultz being a free speech issue and instead being an Establishment Clause issue. The 5th Circuit made no mention of the validity of a free speech claim in their brief. I’m sure if they felt they could have, they would have as that would have been a much sounder reason for overturning the RO than the one they gave which was in fact very light on the legal reasoning. Under proper scrutiny, no such free speech claim is likely to pass SCOTUS review either. The language of the Constitution and tests established by precedent are clear. Like any issue, one can argue the other side, but that doesn’t mean it’s going to be the winning side. Lawyers are in fact trained to argue both/all sides of an argument to proof their reasoning and strategy before going to court so as to anticipate any counter-arguments or objections. The Free Speech argument to be made here is insufficient to best to the Establishment Clause counter argument whether you “believe” it or not.
Any assumptions here are yours, such as the assumption that a secular government is promoting any religion by promoting none at all. The requirements of the legal reasoning cited above is for the requirement of secular government – “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person to ‘profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs” Torasco v. Watkins, 367 U.S. 488, 496 (1961) – not government that promotes secular humanism. In other words, the government can’t force you to recite a secular humanist creed any more than it can force you to recite a Christian creed, but by the same token it can’t use state sponsored activities to promote any creed under the color of state authority. Including Christianity. This isn’t about your Christianity, which you are free to practice, it is about you trying to use mechanisms of state to promote your religion – strictly a Constitutional no-no. You are free to pester people with proselytism in private all you wish, but you can’t do it on the government’s dime or time. Government has to remain secular – i.e. avoid promotion of any religion and excessive entanglement in religious matters. Secular humanism doesn’t have anything to do with it. As far as government goes? Other than respecting your right to practice your religion of choice guaranteed by the Free Exercise Clause, religions are all supposed to be invisible in the creation and administration of law. Secular government has everything to do with it and secular government required by the Establishment Clause, end of Constitutional story.
You’d realize that if you didn’t use words you don’t understand in your attempts to create a rationalization for a Christian theocracy.
“f we accept the USA is a secular nation in law, and this sinner does, then surely you recognize that SCOTUS has stated secular humanism (atheism, etc.) is a religion or not depending upon the case, regardless of the Establishment Clause.”
Steve,
You really need to catch up on your reading, secular humanism does not mean Atheism and is not a religion. In fact it is the evocation of the emotion of empathy and fits in well with Jesus’ Golden Rule.
Gene H: Your assumptions are amusing. Just because something is said does not make it so. And are you absolutely certain all lawyers would agree?
The original point was about being thrown into jail for using specific words. Lenny Bruce would surely have been amused also. Then again the secular humanists, followers of a religion in the eyes of SCOTUS, would seem to be all for it.
raff,
Your statement about Newt’s adherence to his espoused religion and its tenets reminds me of what George Carlin said about Watergate’s Chuck Colson “finding Jesus” while in prison. “The only way that asshole Colson found Jesus is that Jesus didn’t see him coming.”
Steve W.,
Oh, I answered the question alright, you just didn’t like the answer. You shouldn’t use words you don’t understand like secular. Secular means of or relating to the worldly or temporal; not overtly or specifically religious ; not ecclesiastical or clerical; not bound by monastic vows or rules; specifically : of, relating to, or forming clergy not belonging to a religious order or congregation. Something that is secular by definition cannot be a religion. Secular humanism therefore is not a religion but rather a secular philosophy that embraces human reason, ethics, justice, and the search for human fulfillment – no unprovable beliefs (i.e. faith) or religious dogma required – simply empirical logic applied in the pursuit of justice. Also, in Christ day, the most powerful “union” was the Roman Empire – pagans. Paganism, in contrast to secular humanism, is a religion. And they didn’t allow you the freedom to practice your religion let alone influence their form of governance. They fed Christians to the lions. Your snark aside, what you have allegedly learned is factually ignorant rubbish. The law of the land, Constitution and precedent, allow you to practice whatever religion you choose, but still, it prohibits you from forcing your religion on others. If you don’t like that? Too bad. If you want to live under a theocracy, convert to Islam and move to Saudi Arabia, but keep your religion off of and out of our government . . . unless of course you just want to try to piss on the Constitution like Newt does.
Thank you, Gene H., for your reply. Unfortunately the question was not answered. You simply attempted to delineate and justify Biery’s ruling.
If we accept the USA is a secular nation in law, and this sinner does, then surely you recognize that SCOTUS has stated secular humanism (atheism, etc.) is a religion or not depending upon the case, regardless of the Establishment Clause.
“What you obviously couldn’t do for yourself has now been done for you. I wonder if you’ve learned anything.” (Blouise)
Well, I have(re)learned, with gratitude, that lawyers are the most powerful union in human existance. As true in Christ’s day as it is today, only he was not as gentle with them at the time.
Well said Gene. It looks like the Fox News Myth of this being a Christian nation is alive and well. I wonder how biblical law would have dealt with Newt with his two previous adulterous affairs and 3 marriages?
“According to Gingrich, the judge would have no problem putting the superindendent in jail ‘over the word benediction and invocation’. If this is true, and no one has refuted it, what would you propose to do about these circumstances, if anything?” (Steve W)
What you obviously couldn’t do for yourself has now been done for you. I wonder if you’ve learned anything.
Steve W.,
The core of the Biery’s ruling in the Schultz case rested on the Establishment Clause of the 1st Amendment and the tests found in the precedents of:
the case he directly cited;
Lee v. Weisman, 505 U.S. 577 (1992) – The Coercion Test
“As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in [Engel] and [Abington] recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.” 505 U.S. 577, 592 (citations omitted).
which in turn relied upon the additional tests of;
Lemon v. Kurtzman, 403 U.S. 602 (1971) – The Lemon Test
1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion.
and;
Lynch v. Donnelly, 465 U.S. 668 (1984) – The Endorsement Test
“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.” 465 U.S. 668, 689 (citations omitted).
His legal precedent and reasoning are sound, however, the 5th Circuit Court of Appeals later overturned Biery’s ruling annulling the RO, but their finding was that that “On this incomplete record at this preliminary injunction stage of the case, we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school sponsored. We also observe in particular that the plaintiffs’ motion may be rooted at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words “invocation” and “benediction”on the program. The motion also did not expressly address the involvement of the valedictorian in the graduation ceremony.”
Case: 11-50486 Document: 00511498424, p.1-2 Date Filed: 6/03/2011
No. 11-50486.
The 5th Circuit did not cite any legal precedent or authority in this pur curium brief, but rather based the order on the (weak) reasoning that record was incomplete and that the school district had complied in part with the ruling of Judge Biery. Notably, they did not say that the defendants free speech based arguments had any merit and the case is still open to appeal to the Supreme Court (although I do not know if cert has been filed for or granted). If it goes to SCOTUS, even with today’s conservative bent, Biery’s ruling would likely be upheld.
The bottom line is that Judge Biery was upholding the Establishment Clause of the Constitution based on valid precedent and original source law. Your right to free speech right does not include the right to force your religion into government or government sponsored activities in violation of the Establishment Clause. As a matter of law, Biery was correct. It is a myth that this is a “Judeo-Christian” country and it’s propagated by would be theocrats like Gingrich. Our Founders very specifically established a secular government by incorporating the 1st Amendment into the Constitution. Why? They had seen the horrors theocracy had created in Europe during the previous decades and centuries. This may be a country predominated by Christians, but our form of government is not a theocracy. It’s a secular constitutional democratic representative Federal Presidential republic. You are free to practice any religion you choose. You are not free to force it upon others via the mechanisms and organelles of government.
Regardless of what some may think of Gingrich’s motives or his character, did any one genius address what the judge apparently stated. According to Gingrich, the judge would have no problem putting the superindendent in jail ‘over the word benediction and invocation’. If this is true, and no one has refuted it, what would you propose to do about these circumstances, if anything? Does the Constitution have any truth in practice or is it just a document to be parsed and bent to the whims of whoever thinks they’re already home? And in the meantime…
thanks for @swarthmore mom …I’m surprised that newsmax would report that newt is experiencing any type of drop.
on a personal note: half my family went to swarthmore.
rafflaw…You said….
1, December 18, 2011 at 11:45 pm
Outstanding article Gene. Newt is crazy and stupid, but dangerous. All of the Republican candidates are trying to out crazy each other. The difference with Gingrich is that we have a record with Newt that shows a history of radical moves.
*******
I agree with everything you have said…..but stupid….He may make unwise statements and not so wise moves….But stupid is not one of them….He knows politics….and if he stays around longer and steals the election….I am afraid he will do more than we are capable of doing….He might see it as a sign from God…a mandate as it be…
I think History Boy needs to brush up on his history.
Newt is a prime example of a politician. The guy has absolutely no shame, he resigned due to an ethics investigation on him, cheated on his wives, and he still has the gall to run for president. He’d be the closes thing to Lex Luthor running for president. I mean the guy practically invented the illegal contract, which by the way, his were no less absurd than this one: http://lawblog.legalmatch.com/2011/12/12/kidnapper-sues-hostages-breach-contract/
Newt’s positions are acceptable to many of the Republican base because they have an authoritarian attitude that they mistake for freedom. It is this disconnect that makes them so hard to deal with. They live in an alternate reality of America that they are determined to make into all of our reality’s. Scary thing is they just might do it. Great essay Gene.
Outstanding article Gene. Newt is crazy and stupid, but dangerous. All of the Republican candidates are trying to out crazy each other. The difference with Gingrich is that we have a record with Newt that shows a history of radical moves.
One dictatorship down; another on the rise. DonS
Yep… the tragic truth…
(Thanks for the Digby link.)
One dictatorship down; another on the rise.
http://www.huffingtonpost.com/2011/12/18/kim-jong-il-dead-north-korea_n_1156945.html Kim Jong Il Dead: North Korea Leader Dies At 69
Has anyone noticed that Obama is about to turn the United States into a dictatorship — as soon as he signs the bill allowing the President can imprison a person for aiding terrorism without due process? If a President can imprison a person for aiding terrorism without due process, then he can imprison a person for anything without due process. It is not as if he must prove that he acted in good faith. He could imprison me for writing this comment, for my ethnic heritage or skin color, or because he dislikes the shirt I’m wearing. Of course, by not prosecuting Bush for torture, Obama has already established that, as a de facto matter, the President is above the law, but signing this bill into law will make it de jure. This bill turns the United States into a dictatorship, even if we may change dictators every four years.