Gingrich: Outlaw Judicial Review

Newt Gingrich is clearly trying to out-crazy his rivals for the Republican nomination. During last weekend’s wingnut debate, he proposed that Congress should overturn Roe v Wade and forbid the court from reviewing the law that does it — and failing that, they should just abolish any court that dares to challenge them.

I am intrigued with something which Robby George at Princeton has come up with, which is an interpretation of the 14th Amendment, in which it says that Congress shall define personhood. That’s very clearly in the 14th Amendment. And part of what I would like to explore is whether or not you could get the Congress to pass a law which simply says: Personhood begins at conception. And therefore—and you could, in the same law, block the court and just say, ‘This will not be subject to review,’ which we have precedent for. You would therefore not have to have a constitutional amendment, because the Congress would have exercised its authority under the 14th Amendment to define life, and to therefore undo all of Roe vs. Wade, for the entire country, in one legislative action…

The simplest first step which I would take is to propose—and I hope this will be a significant part of the campaign next year—I have proposed to abolish the court of Judge Biery in San Antonio, who on June 1 issued an order that said, not only could students not pray at their graduation, they couldn’t use the word benediction, the could not say the word prayer, they could not say the word God, they could not ask people to stand for a moment of silence, they couldn’t use the word invocation, and if he broke any of those, he would put their superintendent in jail. I regard that as such a ruthless anti-American statement that he should not be on the court, and I would move to literally abolish his court, so that he could go back to private practice, as a signal to the courts.

So much for the separation of powers. So much for judicial review. So much for Federalist 78, in which Hamilton made the point of an independent judiciary perfectly clear:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

What Gingrich is proposing is anti-constitution, anti-liberty and anti-American. It’s also pure demagoguery.

About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • Sqrat

    I wonder if he would be equally intrigued by the possibility of Congress passing a law declaring that corporations are not persons and therefore are not subject to the protections of the 14th Amendment.

  • gshelley

    Does anyone know what the Biery decision actually said? Fox News basically says the same as Gingrich, but has Barry Lynn of the ACLU agreeing with the decision, so to me at least, it seems that either the right are not telling the whole story, or the ACLU has done a sudden and inexplicable about turn on the rights of students to pray or mention god.

  • chilidog99

    In Robert Charles Wilson’s book, Julian Comstock: A Story of 22nd-Century America, the 53rd amendment in the dominionist controlled America was the abolition of the Supreme Court.

  • http://festeringscabofrealityblogspot.com fifthdentist

    Why didn’t they think of that earlier? They can just pass every piece of legislation with this caveat: “This bill will not be subject to review or veto by any black, Muslim, Kenyan Nazi or community organizer, or any Demoncrat president period.”

  • danielrudolph

    My understanding is that Congress can set jurisdiction for courts, but doing this to dent people they’re rights is unconstitutional.

  • danielrudolph

    deny, rather

  • http://rockstarramblings.blogspot.com/ Bronze Dog

    Take out the courts and their ability to rule laws as unconstitutional, and what’s left to prevent a mob congress from making laws that deprive unpopular individuals of life, liberty, and property?

    Or, to frame it for wingnuts, what’s left to protect Christians from creeping Sharia, if Sharia were to become popular? Gingrich is suggesting we eliminate the first major line of defense.

  • laurentweppe

    My understanding is that Congress can set jurisdiction for courts, but doing this to dent people they’re rights is unconstitutional.

    My understanding is that eventually the GOP will stop pretending, and just send thugs in uniform to beat into submission anyone disagreeing with their whims, Bashar style.

  • Vall

    “What Gingrich is proposing is anti-constitution, anti-liberty and anti-American. It’s also pure demagoguery.”

    I’ve often thought the ones that wave the flag the most vigorously were trying to shake it loose so they could step on it.

  • ouabache

    The good news is that:

    1) Considering that the Personhood movement is so unpopular that it couldn’t get passed in ultra-conservative Mississippi there is almost no chance of a personhood bill even getting out of committee in Congress.

    2) Theoretically most Congress critters are smart enough to know that including a No-Backsies clause sets a bad precedent since it means that the opposition could use it when they regain the majority.

    3) Newt has a snowball’s chance in hell of ever getting elected to any office, let alone the presidency.

  • doktorzoom

    Remember, kids, Newt is the “intellectual” among the GOP candidates.

  • yoav

    Where the hell is the newt reading that congress get to define what a person is, if anything the language used indicate that being born is an important factor and thus contradict the fertilized egg is a person claim. The republicans keep trying to market Newt as their “idea man”, I guess they don’t have to be good ideas.

  • chilidog99

    Newt’s office is a room full of filing cabinets labeled “Newt’s Ideas.”

    In on drawer is a slim folder labeled: “Newt’s good ideas.”

  • d cwilson

    There is so much fail here I don’t even know where to begin.

    First of all, the 14th Amendment says nothing at all about defining “personhood”. The first section defines who is a citizen, nullifying the “3/5s” clause for slaves. But it says nothing about who a “person” is.

    Second, Newt is actually saying that we should put every judge in this country under the threat of being fired for issuing a ruling that is unpopular, even if that ruling followed the law and precedent to the letter. Not that I find that surprising coming from him. He’s also threatened to abolish the Congressional Budget Office recently and as Speaker, did indeed abolish the Office of Technology Assessment for the offense of giving Congress technical analysis that republicans didn’t like. So the “shoot the messenger” approach is nothing new for him.

  • Ben P

    My understanding is that Congress can set jurisdiction for courts, but doing this to dent people they’re rights is unconstitutional.

    Remember, kids, Newt is the “intellectual” among the GOP candidates.

    I do have to admit, the idea of congress changing constitutional interpretations by defining constitutional terms in statutory law is an interesting idea.

    Congress does have a number of powers to control the judiciary. Now, Newts ideas about abolishing the 9th circuit or abolishing courts simply because they disagreed with him are absurd and would be a level of partisan hackery we’ve not seen in very long time. But it’s not entirely unprecedented. It was a manuver like that, (or the reverse rather) that led to Marbury vs Madison in the first place.

    Most everyone has heard the basic facts of Marbury, that Mar

  • Sqrat

    I do have to admit, the idea of congress changing constitutional interpretations by defining constitutional terms in statutory law is an interesting idea.

    Well, it’s a rejection of originalism, the basic idea of which is that a word or phrase in the Constitution shall be interpreted as meaning what it likely meant at the time it was enacted, to those who enacted it, not as meaning whatever a subsequent Congress shall declare it to mean.

  • subbie

    I recognize that trying to suss out the thoughts of a lunatic is risky, but I’d be willing to bet that Newty is relying on Section 5 of the Fourteenth Amendment for his claim that Congress can define “personhood.” Section 5 says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” If this is in fact what he has in mind, the major flaw that I see is that “enforce” doesn’t mean undermine.

  • John Hinkle

    If Congress defines personhood, Newt Gingrich no longer has any rights.

  • Sqrat

    First of all, the 14th Amendment says nothing at all about defining “personhood”. The first section defines who is a citizen, nullifying the “3/5s” clause for slaves. But it says nothing about who a “person” is.

    That’s what the Supreme Court said in Roe v Wade:

    The Constitution does not define ‘person’ in so many words.

    But the 14th Amendment does say,

    All PERSONS born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any PERSON of life, liberty, or property, without due process of law; nor deny to any PERSON within its jurisdiction the equal protection of the laws.

    So the constitutional question is, is a fetus a “person” within the meaning of the 14th Amendment? Because, if it is, then no state may allow abortion, because that would be to deny to a person — the fetus — the equal protection of the laws.

    The court concluded that a fetus is not entitled to the 14th Amendment’s protection of the rights of persons:

    [The word “person” appears in several places in the Constitution, b]ut in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application.

    All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.

  • d cwilson

    So the constitutional question is, is a fetus a “person” within the meaning of the 14th Amendment?

    But the point is, no where in the 14th amendment is there language saying that Congress (or anyone else for that matter) has the power to make the final decision as to what is a person.

    But I would say a clue as to what the authors meant is in the first sentence:

    All PERSONS born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    Hence why the Supreme Court did not consider the unborn to have the same rights as the born.

  • Sqrat

    But the point is, no where in the 14th amendment is there language saying that Congress (or anyone else for that matter) has the power to make the final decision as to what is a person.

    That is true, but then are you saying that even the Supreme Court does not have the power to make the final decision as to what a person is, within the meaning of the Amendment?

  • d cwilson

    I recognize that trying to suss out the thoughts of a lunatic is risky, but I’d be willing to bet that Newty is relying on Section 5 of the Fourteenth Amendment for his claim that Congress can define “personhood.” Section 5 says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” If this is in fact what he has in mind, the major flaw that I see is that “enforce” doesn’t mean undermine.

    The problem with that argument is that the phrase “The Congress shall have power to enforce, by appropriate legislation” is pretty boilerplate language versions of which are found in several amendments including the 13, 14, 15, 17, 18, 19, 23, 24, and 26 amendments. It’s nothing special and certainly doesn’t relate to the definition of a person.

  • d cwilson

    That is true, but then are you saying that even the Supreme Court does not have the power to make the final decision as to what a person is, within the meaning of the Amendment?

    Not from the language in the amendment itself, but based on the doctrine of judicial review, it does.

  • Sqrat

    Not from the language in the amendment itself, but based on the doctrine of judicial review, it does.

    When you get right down to it, the doctrine of judicial review itself is not explicit in the language of the Constitution. It is at best implicit. Ultimately it became a matter of the federal courts asserting that, according to their interpretation of the Constitution, they had the final say in interpreting the Constitution.

  • whheydt

    If a fetus is declared to be a “person”, can the woman file an unlawful detainer action to have it evicted?

    –W. H. Heydt

    Old Used Programmer

  • Eric Ressner

    ouabache @ 10:

    Theoretically most Congress critters are smart enough to know that including a No-Backsies clause sets a bad precedent since it means that the opposition could use it when they regain the majority.

    I would be a lot more sanguine about this if the Democrats in Congress could manifest a few vertebrae among them.

  • D. C. Sessions

    If a fetus is declared to be a “person”, can the woman file an unlawful detainer action to have it evicted?

    Or (per Jewish law) take action in self-defense against a rodef.

  • Aquaria

    Newt’s office is a room full of filing cabinets labeled “Newt’s Ideas.”

    In on drawer is a slim folder labeled: “Newt’s good ideas.”

    And it’s empty.

  • tomh

    @ #2

    Does anyone know what the Biery decision actually said?

    Americans United filed suit on behalf of several parents to prevent planned prayers from being offered by student speakers at graduation. Judge Biery granted a preliminary injunction, saying that the plaintiffs were likely to prevail. The day before the ceremony a federal appeals court reversed the decision and dissolved the injunction, saying,

    “…we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school sponsored.” The court also said that the school had abandoned the words “invocation” and”benediction” on the program, so that part of the suit was moot.

    So, in fact, students, in particular the valedictorian, did offer up prayers in their speeches. Judge Biery, by the way, has a colorful history of antagonizing organized religion, which is probably why Gingrich would like to get rid of him.

  • http://www.facebook.com/profile.php?id=100002583021911 jamesgoswick

    Newt should do to Roe v Wade what Thomas Jefferson did to the Sedition Law that was on the books for two years–declare it null and void.

  • http://itsmyworldcanthasnotyours.blogspot.com WMDKitty

    @chilidog (#13)

    And that folder is empty.

  • noastronomer

    “…they should just abolish any court that dares to challenge them.”

    Now why didn’t anyone think of that before? He’s a real genius is our Newt.

    /sarc

  • Michael Heath

    jamesgoswick:

    Newt should do to Roe v Wade what Thomas Jefferson did to the Sedition Law that was on the books for two years–declare it null and void.

    The Sedition Act as it was originally passed had an expiration date of March 3rd, 1801. President Jefferson’s presidential tenure started the next day.

    Prior to the expiration date then-VP Jefferson and James Madison did attempt to get the Act nullified where Mr. Jefferson arguably advocated for outright rebellion.

  • http://sidhe3141.blogspot.com sidhe3141

    After that one person made a comment about Dred Scott being a recent decision he disagreed with, I made a joke about how he might have also disagreed with Maybury. I’m sorry.

  • Chris from Europe

    sidhe3141, do you mean Marbury? I know that some do, but can they provide a clearly superior proposal? And that’s not really a question. (The answer is no.)

  • http://www.facebook.com/profile.php?id=100002583021911 jamesgoswick

    Michael Heath,

    Thanks for the information on the Sedition Act. It is interesting TJ wrote that he freed everyone prosecuted under that law, supporting the fact he thought the Executive could declare a law void. Also, the Executive can ignore the Supreme Court as Lincoln did to Dred Scott and Andrew Jackson did to Crisholm v Georgia.