I’ve got a piece over at the Daily Caller this morning entitled “Newt’s Constitutional Confusions,” the title of which only hints at the constitutional apostasy to be found in Gingrich’s voluminous 21st Century Contract with America. Section nine, for example, “Bringing the Courts Back Under the Constitution,” is an unvarnished attack on what Newt sees as run-away courts frustrating the will of the people – as if that, and not run-away government, were our main problem today.
In fact, Newt praises Franklin Roosevelt’s infamous 1937 Court-packing threat, after which the Court largely abdicated its responsibility to check the political branches. And he condemns Cooper v. Aaron, the unanimous 1958 Little Rock school desegregation decision (remember the federal troops Eisenhower sent?) in which the Court told state officials they couldn’t “nullify” Supreme Court rulings. Thus his main target is “judicial supremacy,” the idea – implicit in the Constitution, explicit in the Federalist, and secured in 1803 in Marbury v. Madison – that it falls to the Supreme Court, not to the political branches, to say finally what the law is.
But in making that argument, he completely misreads the decisions. (In Kelo v. New London, his very first example of a willful judiciary, the Court wrongly upheld the city’s transfer of Ms. Kelo’s property to a private developer!) He misreads the Federalist. He relies on Leftist critics of the Rehnquist Court’s modest efforts at reviving enumerated powers federalism. And most important, politically, he’s misleading the Tea Party folks, most of whom stand for restoring limited constitutional government. Indeed, the Tea Party people hope to see an engaged Court overturn ObamaCare, just in case Newt – or better, someone who understands the Constitution – doesn’t win in November.