Sunday, December 11, 2011

Newt Gingrich - overturning Marbury v. Madison and judicial review


The Norman Rockwell painting of an African American child escorted to school by a federal marshal is an iconic image of shame and the triumph of justice, of federal supremacy over local intolerance as the judgment of Brown v. Board of Education was enforced in Little Rock, Arkansas.  Repudiating the defiance of segregationist Governor Orville Faubus, the Supreme Court declared in Cooper v. Aaron, 358 U.S. 1 (1958):
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
But that moment of triumph - of finally realizing the power of the post-Civil War 14th Amendment,  was not triumph but tragedy  for Newt  Gingrich.  In Position Paper No. 9 of his "21st Century Contract with America" Newt Gingrich writes with his characteristic hyperbole that he would reverse what we have all considered to be a fundamental element of our constitutional system - judicial review:
In the fifty-three years since Cooper v. Aaron, the Supreme Court has become a permanent constitutional convention in which the whims of five appointed judges have rewritten the meaning of the Constitution and assigned to themselves the last word in the American political process. Under this new all-powerful model of judicial supremacy, the Supreme Court -- and by extension the trail-blazing Ninth Circuit Court and even some bold or arrogant district judges — federal judges have been able to redefine the Constitution and the law unchecked by the other two co-equal branches of government.
 A link to the full paper is below.  For Gingrich the Constitution means whatever he wants it to mean.

Bringing the Courts Back Under the Constitution NEWT 2012 Position Paper SupportingItem No. 9 of the 21st Century Contract with America:Restore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.

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