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Monday, December 19, 2011

Newt's Constitutional Confusions

If the tea party stood for anything when it upset conventional politics a year ago, it was to revive debate about restoring limited constitutional government. Newt Gingrich seems to be tapping into that effort, but the tea party folks better look more closely before they buy what Newt is selling. In his voluminous 21st Century Contract with America he has a long section entitled “Bringing the Courts Back Under the Constitution.” A mass of constitutional confusions, laced with several good points, it’s a throwback to some of the worst elements of Nixonian conservatism. And if its proposals were implemented, far from limiting government, they’d do just the opposite.

In fact, the most striking feature of Newt’s manifesto is its failure even to notice that. Its focus is on what he sees as an out-of-control judiciary that’s frustrating the popular will, which he’d remedy with everything from judicial impeachments to abolishing whole circuits. Yet as his first example of what he calls “judicial supremacy” — the power of the court to say what the law is, which Marbury v. Madison made explicit in 1803 — he offers the Supreme Court’s 2005 decision in Kelo v. New London, which upheld, as a “public use,” the city’s transfer of Ms. Kelo’s home to a private developer. Mistaken as the court’s reading of the Constitution’s Takings Clause was in that case, the decision hardly frustrated popular government. Indeed, it upheld the city’s actions.

Link:Newt's Constitutional Confusions

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