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A conservative worries: Will Gingrich return America to the days of King George?

As a conservative constitutional scholar, I am deeply troubled by Newt Gingrich's vision for executive power over the courts – even if it is to strike back at liberal judges. Such a seizure of power threatens the rule of law upon which free and equal citizenship is founded.

By Rodney K. Smith / February 1, 2012

GOP presidential candidate and former House Speaker Newt Gingrich speaks at a Florida Republican presidential primary night rally Jan. 31 in Orlando. Mr. Gingrich's vision of the executive branch having a final say over courts worries this conservative writer.

AP Photo/Matt Rourke

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San Diego, Calif.

As president, Newt Gingrich wants the final say in constitutional matters. Mr. Gingrich envisions this executive power over the courts in his whitepaper “Bringing the Courts Back under the Constitution,” which Gingrich recently announced as a centerpiece of his presidential campaign.

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As a conservative constitutional scholar, I share Gingrich’s concerns that liberal members of the judiciary often misread the Constitution. But I am deeply troubled by his willingness to subvert the rule of law to strike back at those judges, particularly at a time when conservatives constitute a slim but growing majority on the Supreme Court. Such an arrogation of power threatens the Constitution upon which free and equal citizenship is founded.

If a Gingrich administration is allowed to ignore judicial decisions, his successors could do the same.

In his whitepaper, Gingrich declares that his “administration will use any appropriate executive branch powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in federal judge(s) whose rulings exhibit a disregard for the Constitution.”

Gingrich has suggested a president could also direct the United States Marshal’s Office to bring recalcitrant judges before Congress to explain their decisions.

Gingrich asserts in his whitepaper that Congress has the power to “abolish judgeships” and “eliminate funding of the Courts to carry out specific decisions or a class of decisions.” And according to Gingrich, the executive branch has the power to “[limit] the general application of a judicial decision,” or if all that failed simply “ignor[e] a judicial decision.”

Certainty in law requires that there be one final decision in a constitutional matter. Refusing to enforce constitutional decisions he disagrees with, Gingrich arrogates final constitutional decision-making authority to his administration. That is an imperial presidency, something to be feared by all who believe in limited government.

The executive branch already reaches into Americans’ daily lives in too many ways. It is much more powerful than the judiciary. The framers were surely right when they recognized that even an occasionally wayward court is less of an ultimate threat to liberty than a powerful presidency.

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