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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.

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In The Federalist Papers #78, Alexander Hamilton opined that, “A constitution is, in fact, and must be regarded by judges as a fundamental law. It therefore belongs to them to ascertain its meaning...”

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Hamilton also supported judicial independence and the rule of law when he stated: “If, then, the courts of justice are to be considered the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices...”

The Declaration of Independence, with its grievances against England’s King George III, clearly evidences that the founding generation went to war over executive usurpations.

If the executive branch imposes its constitutional will, the rule of law will be eviscerated. Even if Gingrich exercises power wisely, his successor may not. To place finality in the hands of the president threatens life and liberty.

In the early 1990’s I was in Poland as it moved from a tyrannical Soviet state to a constitutional government. Attending a series of meetings in Warsaw, I was surprised by the fixation of attendees on the rule of law.

I asked Lech Garlicki, who subsequently served on the Constitutional Court of Poland and on the European Court of Human Rights, why everyone was focusing on the rule of law. I will never forget his response. He put his arm on my shoulder and with feeling said, “Rod, if you lived for a generation without the rule of law, as we have, you would never ask such a foolish question.”

In that moment, I envisioned an episode of the Twilight Zone, in which Americans awakened one morning without the rule of law, with executive tyranny. No individual would be free or safe in such a world.

As a conservative constitutional scholar, I fear that Gingrich is willing, in a grandiose moment, to eviscerate the rule of law and return us to the days of King George.

Rodney K. Smith is a distinguished professor of law at Thomas Jefferson School of Law in San Diego, Calif. and a nationally recognized constitutional scholar.


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