I watched the Republican candidates debate again last night. And then this morning I watched the pundits pick it apart.
The candidates said a lot of different things, most of which I disagreed with, but one thing in particular jumped out at me. Newt Gingrich wants to call judges to the Congress and impeach them if they write opinions that are contrary to the majority of the legislators. Michelle Bachmann agreed with him and went even further by stating that the judicial branch was intended to be the weakest of the three branches of government. Some pundits agreed with Bachmann, stating that the Federalist Papers implied that the Judicial branch was supposed to be the weakest of the three branches of government.
This entire argument is ludicrous. In the first place, the Federalist Papers are a collection of opinion pieces written by Alexander Hamilton about the way he viewed the U.S. Constitution. They are not the law and were never meant to be. They are just opinions. I’m amazed that two candidates, one a historian and the other a Tea Party Constitutionalist, don’t know that according to Article I, sections 1, 2 and 3 of the Constitution, all three branches are actually equal.
Let’s have a brief history review. The Executive branch has certain powers, checked by the Legislative branch, and both are checked by the Judicial branch. In other words, if the legislature writes a bill and votes to pass it into law, it has to be submitted to the president for approval. If the president agrees with the law he signs the bill and it becomes law. If he disagrees with the bill or any part of it he can veto it and send it back to Congress. With a 2/3 vote the Congress can over-ride the President’s veto and the bill would become law despite his objections. If anyone, an individual or a state, disagrees with the law they have the opportunity to claim that it is unconstitutional. The Judicial branch then reviews the law and decides if it is within the guidelines of the Constitution. If they decide that it is not, then the law is overturned.
A perfect example of this is the continuing struggle by Congress to pass a law banning flag-burning. The Supreme Court has several times overturned any effort, stating that flag burning can be considered an expression of speech and thus protected by Article 1 of the Bill of Rights.
Mr. Gingrich thinks that some “liberal” judges are “activist”, making their own laws by overturning real laws. Those judges, he says, should be called to Congress and questioned. As Ron Paul said last night, that would be opening a whole can of worms. Any judge’s decision can be overturned by a higher court. Mr. Gingrich then went on to say that Abraham Lincoln would have agreed with him because he tried during his presidency to change the judicial system. Well, as far as I know, and I’m not a Ph.D. like Mr. Gingrich, Lincoln vehemently disagreed with Roger Taney’s deciding opinion in the Dred Scott case, but he never tried to change it. He also suspended the writ of Habeus Corpus by executive order which was overturned by the Supreme Court under Chief Justice Roger Taney. [i]
The Republican candidates keep referring to the Federalist Papers as if they were law. As I stated above the papers were a collection of opinion pieces and in no way intended to be law. They also forget to mention, or more likely choose to ignore, that there was a collection of Anti-Federalist Papers written by Hamilton’s opponents, most notably James Madison.
They also fail to recognize the meaning of the Federalist Papers. The term “Federalist” itself implies a strong central government with limited states’ rights. This is exactly the opposite of what the modern Republican party believes in. The only thing in the Federalist Papers that coincides with modern Republican beliefs is the opinion that major industrialists be a major influence in the policies of the government.
They need to review the Constitution and their history books.
[i] Lincoln suspended the writ as an emergency measure to prevent the state of Maryland from voting for secession immediately after the beginning of the Civil War. Congress objected to this executive order and took it to the Supreme Court. The court, led by chief justice Roger Taney, a native of Maryland, ruled against Lincoln. Lincoln ignored Taney’s decision, and although as the President in the time of insurrection or rebellion he had the Constitutional power to order the suspension without Congressional approval, in order to expand the suspension to some secessionist or anti-draft mid-western states, he formally asked Congress to approve of the suspension. They agreed. By the way, three later presidents suspended the writ. U.S. Grant in order to stop the KKK in some southern states, FDR to send Japanese, German and Italian Americans to internment camps during WWII and George W. Bush to arrest any suspected “military combatants” during the Iraq and Afghanistan wars. All did so without Congressional approval.
