July 12, 2011

Gingrich gives his opponents a quote to gasp about: "There is no Supreme Court in the American Constitution."

Just a few days ago, I was talking about a certain type of clever remark:
A witty, engaging speaker will say something surprising and counterintuitive, but then flesh it out or add one more point, and then it clicks. Of course, if you have opponents, you've got to anticipate what they'll do with the little slice of what you said that seems head-slappingly idiotic. So it may not be so smart to be smart like that. 
The context was David Plouffe saying "people won’t vote based on the unemployment rate." And now, here comes Newt Gingrich with an even juicier example of the seemingly stupid line that wakes up the audience and draws them in to hear the whole context but that also gives opponents an easy way to use the remark to make you look like an idiot.

Here's the quote, in it's full context (transcribed in a post by Ian Millhiser at Think Progress):
In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.
It's obvious to me — as a law professor who has studied and taught Article III of the Constitution for 25 years — that Gingrich is not denying that the Constitution provides for a Supreme Court. He's denying the supremacy of that Court over the other branches. He's stressing the checks on the judicial branch, which include Congress's power to make "Exceptions and... Regulations" to the Supreme Court's jurisdiction, and the idea that the Supreme Court is not the sole voice in the interpretation of constitutional law. This is routine stuff in a Conlaw I class. It's what we conventionally talk about along with Marbury v. Madison. It's not the slightest bit edgy, believe me.

Watch the video at the Think Progress link. You can hear the stress on "Supreme" in "There is no Supreme Court in the American Constitution." He knows there's a Supreme Court. It's just not, in fact, supreme over everything. The Supreme Court can strike down statutes and order members of the Executive branch around to a certain extent, but it is also subject to jurisdiction cutbacks, new appointments, impeachment, and constitutional amendments. And the question of what the Constitution really means survives independently of the case law. We are free to argue that the Court got it wrong, to try to get cases overruled, and so forth. And there are many places where the Court hasn't spoken yet or may never speak, in which case there are important responsibilities elsewhere in government for other individuals to say what the Constitution means.

50 comments:

Fred4Pres said...

And Dede Scozzafava is a good Republican.

Gingrich needs to go away.

David said...

What? You mean the courts can't just overturn everything they disagree with? Someone tell Judge Sumi.

Fred4Pres said...

Idiots who are still contributing to Newt's presidental campaign are insane. If you want to throw your money away, give it to conservative blogs fighting for freedom. Do not give it to Newt so he can do another breakfast at Tiffany's or go on another med cruise with is Fembot wife.

David said...

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article 3, Section 2, Clause 2
United States Constitution

Fred4Pres said...

Is the Supreme Court "supreme" over Congress and the White House, no it is not. Heck, I think Andrew Jackson proved that didn't he?

But Newt is a black hole sucking up nutrients and oxygen from the other candidates. Newt is a big malignant mole in Republican politics and needs to be burned off before he metastizes.

chickenlittle said...

There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch

Seems intuitive, lest all the power would have pooled and eddied there already over time.

Browndog said...

Correct me if I'm wrong:

Althouse (correctly) points out the Newt was using "supreme" as an adjective, not a proper noun.

Fred4Pres said...

...or go on another med cruise with his Fembot wife.

Fred4Pres said...

Newt has no opponents. His presidnetial campaign is dead. He is just a huge pile of necrotizing flesh. The only thing Newt can do know is spread disease to other Republicans.

rcocean said...

Of course. Its just that the Power elite decided - years ago - to make believe that was the case.

You only have to look at the SCOTUS from Dred Scott Case through much of Reconstruction to see that if Congress and the President will it, the SCOTUS has no power at all.

Tomorrow, the congress & the President could pass a bill stating Roe v. Wade was no longer the power of the land & that states were free to outlaw abortion. And the SCOTUS could do what?

"Justice Marshall has made his ruling, now let him enforce it."

Cedarford said...

I think that what Gingrich said is a debate many want to have happen. Too much, we have been instructed by liberals and Ruling Elites that the Court is the Final Word over the Executive and Legislative Branches.
And when the Court goes into making new social policy as law - Roe, Lawrence.....people now recognize that if we accept the Court as Final Word, the Amending process is broken and nearly impossible to use. The poison spreads into elections where we are told the candidate may be awful, but that candidate will "more likely appoint the right sort of ideological judges". The Constitutional Convention scares everyone.
So we need to have another path of recourse to lawyers over-reaching to control America.

Gingrich, like Palin, is a badly flawed candidate.....but worth listening to. More "right" on many issues that others are. The Constitution sanctions his sort of pushback mechanism against Marbury v. Madison.

I believe we are just about done with the idea of lawyers better educated than we, from the "right schools" - deserve to control any aspect of our lives they care to shove their ideology into. As a New Sanhedrin. High Priests of the Sacred Parchment.

Sixty Grit said...

Baghdad Newt...

Okay, that's not apt, but it sure was fun.

Chuck66 said...

Newt is a great political commentator. But he is in this only for the travel, debates, nice hotels. It's kind of a hobby.

pm317 said...

Supreme Supreme
Sacred Sacred

Cedarford said...

"Fred4Pres said...
Is the Supreme Court "supreme" over Congress and the White House, no it is not. Heck, I think Andrew Jackson proved that didn't he?"

The 3 high points for democracy in our history were:

1. Andrew Jackson telling John Marshall to piss off.
2. Lincoln telling Taney to piss off and threatening him with arrest for treason if he persisted.
3. FDR tired of a reactionary Supreme Court trying to overturn elections and sabotage any change FDR and Congress sought to make - telling them to get with the program or he would pack the Court. He never did..not because he 'lost' as present day Scotus worshippers said he did - but because the court-packing led to a serious reality check on the boss lawyers.

Fr Martin Fox said...

I will make a prediction, which I don't do: this won't generate many titters. But I think it would, had Palin or Bachman said it.

Aside from that being explained by sexism (which is valid to some degree), it's also a matter of reputation. Gingrich, rightly or wrongly, lacks a reputation for being a dunce. Gasbag? Sure; but not the same thing.

On the other hand; fair or not, Palin and Bachman--or Quayle, or George Allen, and many other men in politics--are susceptible to a quote that, at first blush, seems stupid.

Had Hilary Clinton, or one of the female justices of the Supreme Court, said this, fair or not, they would have been given the presumption of not being stupid--so they must have some other point.

I think Gingrich gets that presumption on something like this. Let's see if I'm right.

(BTW I'm not a Gingrich fan.)

Revenant said...

Gingrich said it badly, but what he said was accurate; the Supreme Court is not the final arbiter of the US government.

Blair said...

So, you're telling me that, after all this time, Congress could just pass a law saying "The Supreme Court has no jurisdiction over the issue of abortion, which is a matter for the States"?!

It will be interesting to see if there is ever a pro-life majority in the Senate, which would pave the way for such a measure.

Ann Althouse said...

"So, you're telling me that, after all this time, Congress could just pass a law saying "The Supreme Court has no jurisdiction over the issue of abortion, which is a matter for the States"?!"

This is a much debated question, and there's a lot of scholarship on the subject, but the best answer is: yes.

Keep in mind that the Court itself will be the one to say whether the jurisdictional cutback is constitutional, and there are theories available to say that it's not, so that could easily happen.

But the law isn't clear on the subject because Congress avoids using this power like that. The subject came up very clearly after the flag-burning case. There were hearings on the subject, and Congress declined to use that power, because it didn't seem like the right way to go about opposing a decision that it didn't like.

The restraint that Congress has shown over the years, is, in my view, a reason why it is, in fact, trusted with this power in the system of checks and balances.

Carol_Herman said...

Gingrich is jealous of Stuart Smalley. And, he's very jealous of Bill Clinton!

And, Gingrich is a putz that should have pulled up political stakes ... because he was an incompetent Speaker of the House!

Ann Althouse said...

"So, you're telling me that, after all this time, Congress could just pass a law saying "The Supreme Court has no jurisdiction over the issue of abortion, which is a matter for the States"?!"

Congress would also have to cut back the jurisdiction of the lower federal courts (which it can do under the Ordain and Establish Clause).

Then it would be left to state courts, which have the obligation to enforce federal law under the Supremacy Clause. Those courts would be bound by precedent, even though their decisions would not be reviewable by the Supreme Court, so it would not be the same as overruling Roe v. Wade.

Only the Supreme Court can overrule Roe v. Wade, so that's a big problem with the idea of cutting its jurisdiction to take the cases!

The state courts could start flouting Supreme Court precedent, which would be rather disorderly. Is that what you want? Is that what Congress should or would choose?

Carol_Herman said...

John Marshall thought up the Theory. In Marboro V. Madison.

So that even though political contests are all about fighting, to produce a winnah! John Marshall said he'd be the referee.

Then someone else came along ... One of our presidents. And, said "let the Supreme Court decide any way it wants to. Let's see them produce an army to enforce it."

Basically, you need men, here.

Men who earn respect ... and don't squander it.

We've been watching it squandered by nincompoops.

When was the last decision that contained something as concise as:

"I don't know what pornography is, but I know it when I see it."

Don't we all.

Oh, and good for the Supremes! Even the crazy Code Pink ladies don't go into theaters, shouting, "FIRE!" Of course, if they did, they start a stampede ... and end up underfoot.

edutcher said...

Judicial review takes a lot of political hot potatoes off politicians' hands. That's why it's tolerated. Otherwise, any executive could tell the appellate courts to take a flying leap for themselves.

(Hmmmm...)

Newt, OTOH, is proving that you can be too smart for American politics, a fact to which HL Menken alluded. He speaks in the not-entirely-abstruse technicalities of the Constitution which require an educated populace to appreciate.

And I say this as someone who thinks Newt would have been better off running against Willie in '96. He's past his prime now.

Roger J. said...

Surprisingly enough the SCOTUS is, at least as Marbury v Madison holds, a coequal branch of the government. While I think Andrew Jackson poked a hole in its coequal status, time and precedent have somehow given it more authority than the founders intended. SCOTUS is operating on the good faith ascribed to it by ordinary Americans. SCOTUS should never forget that. Otherwise we will return to Andrew Jackson's note: Mr Marshall has made his decision; now let him enforce it.

Fred4Pres said...

I want to see the Supreme Court treated as a co-equal branch of government, but its role is by far the most limited of the three branches (by the specific text of the constitution).

This is not what the Supreme Court should be...

Browndog said...

I can almost guarantee that if Rick Perry is our next President, there will be a huge power shift (rightly so) back to the Several States.

Fred4Pres said...

I have a feeling that Professor Gingrich would like to be up their on that mountain top.

Roger J. said...

Actually Professor A: yes lower courts can flout the SCOTUS--and the SCOUTUS can do nothing about it.
President Jackson understood that. Why do you not?

disorderly? no doubt--but it means political solutions come to the fore. Not legal dicta

Fred4Pres said...

...up there on that mountain top.

Blair said...

Then it would be left to state courts, which have the obligation to enforce federal law under the Supremacy Clause. Those courts would be bound by precedent, even though their decisions would not be reviewable by the Supreme Court, so it would not be the same as overruling Roe v. Wade.

Only the Supreme Court can overrule Roe v. Wade, so that's a big problem with the idea of cutting its jurisdiction to take the cases!


Okay, so essentially even if they did take jurisdiction away from the federal courts on that issue, it would still have no legal effect on the status quo. So they could do it, but they'd be wasting their time (and creating constitutional mayhem in the process).

themightypuck said...

The map is not the territory.

cokaygne said...

What's the big deal? I'm neither a lawyer nor a historian and I knew that. Yes, if either Bachman or Palin, neither of whom I support, said that, the media would be all over themselves laughing at another stupid remark by the dumb hillbilly broad from the sticks. If Hilary said that, it would be proof of her wisdom, despite being a cynical witch who has accomplished everything in life by staying married to her philandering husband - another educated gas bag, but one who has the common touch and was great for his party. This stuff is so obvious.

By the way, is not Gingrich the anti-Obama? Both are over-educated, pedantic gas bags lacking a shred of common sense who bring ruin to their political parties.

POTUS and Congress will never limit SCOTUS's jurisdiction because it is useful to both parties. Courts can put into effect policies that the elite believe will be of benefit to the country - they are usually right about that IMHO, but are political poison in the short run. The court can enact the policy and the politicians can rant about the high-handed, undemocratic way the court is acting, and then turn to the rubes and say, sorry, it is the law of the land.

Roger J. said...

the SCOTUS can make any ruling it wants; the congress can pass any legislation it wants; the executive can do anything he/she wants--thats the reality, IMO.
The system only works when participants buy into it. for most of the republic's time on earth they have--whether they will continue to do so is an open question.

The levers of power really do not rest with the co-equal branches; they rest with institions who hold the instruments of force, and those institutions are bound by tradition. duty and honor, not reality.

Eric said...

Seems intuitive, lest all the power would have pooled and eddied there already over time.

Hasn't it?

traditionalguy said...

Newt is a bomb thrower. So he just showed off for us how vulnerable the US Government separation of Powers is to his analysis bombs...like the utility grid is to bombing by terrorists.

God help us when professors, such as Woodrow Wilson, get our leadership offices.

The SCOTUS is not a problem today. But it will become one if Obama names the next 2 Justices.

When is that next election?

mariner said...

Roger J.,
While I think Andrew Jackson poked a hole in its coequal status, time and precedent have somehow given it more authority than the founders intended.

I don't believe he did. I believe Marshall asserted superiority and Jackson poked a hole in that, by refusing to acquiesce to it.

Phil 3:14 said...

I'd say Mr. Gingrich is

"too clever by half"

but that grossly underestimates his problem.

Fred4Pres said...

traditionalguy, Obama would turn the Supreme Court into this. And Newt would love to be on it too.

Phil 3:14 said...

Fred;
But Newt is a black hole sucking up nutrients and oxygen from the other candidates. Newt is a big malignant mole in Republican politics and needs to be burned off before he metastizes.

This is the mental picture I now have

Mick said...
This comment has been removed by the author.
Mick said...

Supremacy of Congress:

Article 3, section 2:

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Has the Congress secretly used this exception rule with regard to Obama's eligibility (A2S1C5)? I think I just had an epiphany!

Being that you've taught Con Law (not that any lawyer really cares about it) for 25 years, what is your opinion of the meaning of A2S1C5?

The Crack Emcee said...

2012 can't get here soon enough.

I want all the "clever" people GONE.

Paul said...

"Gingrich is not denying that the Constitution provides for a Supreme Court. He's denying the supremacy of that Court over the other branches."

Correct Ann.

Otherwise SCOTUS becomes a Communist committee that runs the country by fiat.

Kirk Parker said...

Wow! Just a few hours after I slap him around, C4 comes up with an entirely reasonable comment, and containing not so much as the slightest hint about you-know-who.

Coincidence? I think not...

Doug Wright said...

Actually, I think Newt is doing us all a favor, of a kind, by saying what he did. Our Famous Founders produced a wonderful document and established a great concept of a government, which has surprised many and existed somewhat as is for many years.

However, they screwed the pooch on the 2nd A wording and on others like the 13th A & 14th A. We try to figure it out and allow SCOTUS far too much leeway on things we'd reconsider if we could!

Also, a Constitutional Convention scares the bejabbers out of me because of the mischief and precedent of the 1787 convention regarding its objectives!

wv: cheatery if we must but be true to our own selves.

mariner said...

Doug Wright,
However, they screwed the pooch on the 2nd A wording and on others like the 13th A & 14th A.

Perhaps.

I believe it's more like dishonest power-grabbing judges and politicians told us that the Constitution doesn't mean what it clearly says -- it means whatever they want it to mean.

We allowed this to go on for so long that we're past turning it around without a civil war.

Eric said...

However, they screwed the pooch on the 2nd A wording and on others like the 13th A & 14th A.

You can't blame the founders for amendments that were added almost a century later.

roesch-voltaire said...

Gingrich is right on this one;somehow the court has assumed the most power in the nation and five kings can make corporations into people.

Doug Wright said...

Still, while it's good that our nation's founders could not live forever, they should have recognized that words have more meaning than even they might have considered. And, in a sense, that characteristic of words along with the propensity of mankind not to be too altruistic has lead us to the dilemna recognized by Ben Franklin, supposedly, after the Consitutional Convention was ended. We still don't know if we can keep this republic of ours or whether we'll let it go down the sinkhole.

I do consider that we might have to wage a greater effort, perhaps much more physical, to keep what we've got as a country. What Newt seems to be doing has a limited value outside of a classsroom or political gathering.

OBTW: The Founders were not perfect nor is the current oppostion to our way of life.

Robin said...

Those attacking Gingrich are only showing their own ignorance, as Prof Althouse points out.

That said, this is one of Gingrich's problems, he discusses ideas and concepts too sophisticated for political discourse and usually does so at poorly chosen times and places.