Newt Gingrich's recent pontifications about constitutional law have one redeeming quality -- they offer a teaching opportunity about the beginnings of our democracy, and the power of the courts to review and invalidate actions of the other branches of government. Gingrich's attack on the judiciary -- he would abolish courts that issued wrong-headed opinions, force judges to explain their rulings, cut funding for courts and impeach more judges -- is egotistical bluster; his "constitutional solutions" are laughable. His claim that the Supreme Court has overstepped its constitutional boundaries mimics what former Chief Justice Charles Evans Hughes indelicately observed: "We are under a Constitution, but the Constitution is what the judges say it is."
To be sure, Gingrich's assertion that "judicial supremacy" is a fraudulent doctrine is not that far-fetched, at least as an historical matter. Indeed, one could make the case that the Constitution offers no explicit support for the idea that the judicial branch gets the last word in interpreting the Constitution. The starting point for so-called "judicial supremacy" is the Supreme Court's seminal 1803 decision in Marbury v. Madison, in which Chief Justice John Marshall declared that the "judicial power shall extend to all cases arising under the Constitution," and that "it is emphatically the province and duty of the judicial branch to say what the law is." But Marshall's assertions are just that -- assertions. There was virtually no contemporary support for his arguments, especially his claim that the Judicial branch has the exclusive power to review the actions of the Executive and Legislative branches of our government. Indeed, at the time our Constitution was ratified in 1787, in several countries with written constitutions -- France, Switzerland, and Belgium -- as well as Great Britain, where Magna Carta and other written instruments were considered constitutional law, the law-making bodies known as Parliaments were considered supreme, and their acts became the Law of the Land and were not reviewable by courts. Indeed, one could restate Marshall's famous dictum to accord with contemporary constitutional law: "It is emphatically the province and duty of the legislative department to say what the law is."
But whether Marshall created the concept of judicial review out of whole cloth, as many critics, including Gingrich believe, is really beside the point. Because of Marshall's tight logical reasoning, rhetorical flourishes, and political brilliance, the power of the Supreme Court became legitimized, and the Court was enabled to begin to confront the oldest and most important constitutional question -- the relationship between the federal government and the states. Thus, Gingrich's attacks might be more acceptable on the federal level, where the inability of courts to have the last word on conflicts between the Court, Congress, and the president would not cause our nation to crumble. However, if those conflicts pitted the national government against the states, then undermining the power and independence of federal courts, as Gingrich is trying to do, would likely destroy our nation, as the Civil War dramatically showed. Unless the federal judiciary could force states to obey national law -- whether the law involves the right to speak, to obtain an abortion, or to secede from the union -- then we could no longer function as a "United States."
This point was made emphatically in the famous 1958 case of Cooper v. Aaron, which Gingrich finds the most troubling. Cooper described the attempt by the governor and legislature of Arkansas to "nullify" the Supreme Court's holding in Brown v. Board of Education, which declared that segregated public schools violated the Constitution. Gingrich's attack on Cooper is not completely off the mark -- the Court misstated Marbury in two ways, first, by suggesting that Marbury "declared the basic principle" that all federal courts, not just the Supreme Court, are authorized to interpret the Constitution, and second, that the Constitution includes not only the text, but also every decision of the Supreme Court interpreting the Constitution. But that "gloss" on Marbury was not exceptional, and given the development of constitutional law was fairly understood by constitutional scholars.
But Gingrich's exaggerated plea to "Bring the Courts Back Under the Constitution" is quickly dismissed as hyperbole by most legal commentators. As with many of his claims, Gingrich tries to be provocative but exposes shoddy thinking. Courts are easy targets for aggressive politicians, especially when they decide controversial cases against positions that social conservatives care about -- abortion, gay marriage, religious liberty, flag burning etc. Gingrich's "solutions" include abolishing courts, cutting spending for courts, limiting the cases courts can hear, and allowing the president and Congress to ignore Supreme Court decisions. These proposals make good sound bites but would be virtually impossible to implement.
Finality is the key. Gingrich wants the political branches to have the final word on constitutionality. Would finality by the political branches be more acceptable? The Court makes mistakes. Justice Robert Jackson famously said in addressing the Court's authority to interpret the Constitution: "We are not final because we are infallible, but we are infallible because we are final." Gingrich would alter the constitutional balance, and reduce the power of the courts to be the final arbiter, except, of course, when the Court is the final arbiter on issues that conservatives support -- such as the 2000 election of George W. Bush. Gingrich can't have it both ways. If you lose the courts -- a far less dangerous branch than the other two branches -- then you lose the Constitution. It's probably not a price worth paying, and Gingrich probably knows that.