Methinks Newt is tired of being outflanked on the right: (h/t: Memeorandum)
Then, in what amounted to a 35-minute seminar on constitutional history, Gingrich argued that the judicial branch has grown far more powerful than the nation’s founders ever intended and said it would be well within the president’s authority as commander in chief to ignore a Supreme Court ruling that he believed was incorrectly decided.
He cited four examples in presidential history, including Abraham Lincoln, whose administration, Gingrich said, refused to enforce the Dred Scott decision by the Supreme Court on slavery and then actively flouted it by emancipating the slaves with an executive order.
Given the sort of things judges feel empowered to do these days, it’s hard to find this as radical as many of the commenters do. Protein Wisdom:
In short, the Judge has now institutionalized the idea that a proper education is tied to how much money is spent on it — this, despite years of evidence showing that per capita spending on education doesn’t correlate to better educational performance.
And she has also decided that the power to tell the state that it isn’t spending enough rests not with the voters or their representatives in the legislature, but rather with her.
Especially because Gingrich is basically right: Lincoln ignored the Dred Scott decision, as Andrew Jackson ignored Worcester v. Georgia (the Cherokee case). Judicial authority requires executive obedience to be meaningful.
The balance among the three branches requires care. Without the capacity of the judiciary to put the breaks on the political branches, unliked minorities can be made scapegoats, and the liberties guaranteed by the Constitution become subject to plebiscitical passion. But without some discreet capacity to ignore the judiciary, the tiniest of minorities (the legal profession and judges) can run roughshod over the rest of us, and the bedrock liberty of the American Revolution — taxation by representation — becomes subject to elitist whim.
The question of how much a state decides to spend on any public institution — even one so essential as schools — is a political question, and so belongs to the political branches. The courts have no business in it, and should be ignored if they pretend otherwise.
GLENN REYNOLDS CHIMES IN:
FDR could get away with this because he was much more popular than the Supreme Court. No politician or official today is more popular than the Supreme Court. I doubt a President Gingrich will be either.
Probably, but I don’t think Gingrich is as far out of the mainstream as he sounds. I think the popularity of the Supreme Court, especially on the right, is grossly overstated. Decisions like Kelo demonstrate that the Court is not to be trusted to protect individual liberties over the power of the state. It’s less scandal-ridden than the political branches, but that’s hardly a high bar to clear. Only the Left still holds the court in high regard, and then only when they win.