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?
~Submitted by Gene Howington, Guest Blogger
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