AP Photo/Matt Rourke
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.

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.

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.

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.

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...”

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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