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Rodney K. Smith: Gingrich's whitepaper seeks to dismantle the rule of law

By Rodney K. Smith

Published: Sunday, Jan. 29 2012 12:32 a.m. MST

Republican presidential candidate former House Speaker Newt Gingrich listens to a question during an event at Aloma Baptist Church, Saturday, Jan. 28, 2012, in Winter Park, Fla.

Associated Press

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Former U.S. House Speaker Gingrich announced during his recent comments after winning the South Carolina primary that a centerpiece of his campaign is his whitepaper, "Bringing the Courts Back Under the Constitution." That paper envisions a very powerful executive branch, under the Speaker's leadership, that wields the power to issue final determinations regarding constitutional issues.

Such an arrogation of power threatens the rule of law upon which our free and democratic government is founded.

In that whitepaper, Gingrich declares, "A Gingrich administration will use any appropriate executive branch powers by itself and acting in coordination with the legislative branch to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in federal judge(s)."

And, if necessary, Gingrich would direct the United States Marshal's Office to bring judges with whom he disagrees before Congress to explain their decisions.

If such expressions of displeasure with judges were unsuccessful, then the Gingrich administration would turn to more draconian methods to impose its constitutional will on recalcitrant judges. The Gingrich administration would "abolish judgeships," "eliminate funding of the courts to carry out specific decisions or a class of decisions," "limit the general application of a judicial decision" or, if all that failed, simply "ignor(e) a judicial decision."

Speaker Gingrich opposes the finality of the Supreme Court in deciding constitutional issues. He would permit the legislative and the executive branches to independently decide constitutional issues as well.

Certainty law requires that there be only one final decision. As president, executing or refusing to execute the law, Gingrich would arrogate the final constitutional decision taking authority on himself. That is an imperial presidency.

The framers were fearful of legislative usurpations. In The Federalist Papers #78, Alexander Hamilton opined, "A constitution is, in fact, and must be regarded by judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."

Hamilton also supported judicial independence in the interest of maintaining the rule of law. He emphasized, "the courts of justice are to be considered the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

A cursory reading of the Declaration of Independence, with its list of grievances against England's King George III, makes it clear that the founding generation was willing to go to war over executive usurpations.

If the executive branch uses its enormous store of power to impose its "constitutional" will and ignore court decisions, the rule of law will be eviscerated. Even if Gingrich exercises this extreme power wisely, he must understand that his successor may not. He will have put in place a grandiose plan that permits a president, at his whim, to deprive the American people of life and liberty.

In the early '90s I was involved in working with Poland in its efforts to move from a tyrannical Soviet state to a constitutional government. After attending a series of meetings in Warsaw, I was amazed by the fixation of those in attendance on the rule of law, which participants considered to be the bulwark of free and equal citizenship.

I will never forget asking my friend Professor Lech Garlicki, who subsequently served on Constitutional Court of Poland and on the European Court of Human Rights, why everyone was focusing on the rule of law. He put his arm gently on my shoulder and with deep feeling said, "Rod, if you lived a generation without the rule of law, as we have, you would not ask such a foolish question."

Reflecting on Lech's comments, I saw things more clearly. I conceived an episode of the "Twilight Zone" in which we awakened one morning and found ourselves without the rule of law, with executive tyranny. No individual would be free or safe in such a world.

As a conservative constitutional scholar, at a time of ascendancy of conservatives on the Supreme Court, I am surprised that Newt Gingrich is, in a grandiose moment, willing to eviscerate the rule of law, returning us to the days of King George.

Rodney K. Smith is a professor of law at Thomas Jefferson School of Law and a nationally recognized constitutional scholar.

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