Robert Bennett: Newt Gingrich's position on courts wrong

Published: Monday, Dec. 26 2011 12:00 a.m. MST

During the presidential race, I have avoided criticizing any candidate's specific proposals because I know and like most of the candidates (full disclosure – I support Romney), and I do not use this column to take sides. However, when Newt Gingrich proposed to have federal marshals bring judges before Congress to be questioned about, and face impeachment for, their opinions, and defended his position by saying, "as a historian, I understand this better than the lawyers," the historian in me felt compelled to speak up.

Have there been court decisions in our history with which I disagree? Of course. But there are many more congressional actions and presidential decisions with which I disagree. Giving Congress and/or the president the power to make the final interpretation of the constitutionality of their own actions would leave the Constitution open to amendment by a simple majority vote in Congress. That would shatter a most important Constitutional doctrine — the concept of "separation of power."

Delegates to the Constitutional Convention separated power by creating three separate branches of government and giving each an advantage over the other two. The legislative branch got the power of the purse, to control the money. The executive branch got the power of the sword, to enforce the law and control the military. The judiciary branch got life tenure, shielding it from political pressure when making decisions.

When the Congress was seen as trying to impose its will on the judiciary through the Repeal Act of 1802, Alexander Hamilton warned: "The independence of the judges, once destroyed, the constitution is gone; it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate." Threatening judges with impeachment when Congress disagrees with their decisions is precisely the kind of thing that Hamilton feared.

Thomas Jefferson clashed with the judiciary over the issue of whether or not the courts could compel him to recognize an appointment John Adams had made as he was leaving office. Adams had nominated William Marbury as a justice of the peace with a five-year term and the Senate had confirmed him, but his written commission for that office wasn't delivered to him before Adams' term expired. Jefferson refused to hand the commission over, and Marbury sued James Madison, the secretary of state, in an attempt to get it. The case went before the Supreme Court, Chief Justice John Marshall presiding.

Question: Did the court have the right to rule against a president? It was considered a constitutional crisis. Marshall handled it brilliantly.

Speaking for a unanimous court, Marshall said Jefferson was wrong in blocking the delivery of the commission but didn't order that it be given to Marbury. He said the Supreme Court could not compel Madison to act because the law supposedly giving it jurisdiction in such matters was unconstitutional.

That put Jefferson in a box. If he won the argument that the Supreme Court could not declare a law unconstitutional, he would lose the case to Marbury. He did not publicly challenge the decision.

What he did do, looking to the future, was appoint justices whom he expected would disagree with and thus outvote Marshall on this and related issues. But Marshall converted them to his views and unanimous decisions against Jefferson's positions kept coming long after Jefferson's presidency ended. The independence of the judicial branch became firmly embedded in the American political tradition. That's history.

As a history buff and teacher myself, I must respectfully dissent from my friend Newt's position. The doctrine of separation of powers has served us well for over two centuries.

Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.

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