Wednesday, December 28, 2011

The Cost of Fetishizing the Constitution

By Mike Dorf

My latest Verdict column examines Newt Gingrich's recent attack on the federal judiciary.  I conclude that his historical argument is basically right: Thomas Jefferson and Abraham Lincoln did question the constitutional basis for judicial supremacy, while Jefferson and FDR (as well as others) attempted to change the law in order to neuter or intimidate the federal judiciary, so as to achieve substantive results they favored.  I also conclude that Gingrich's normative views are misguided.  He places too little value (if any) on an independent judiciary.

Here I want to note how Americans' habit of fetishizing the Constitution makes Gingrich's argument appear stronger than it is.  The horrid things that Gingrich proposes to do to the federal judiciary--including dragging them before Congress to explain their decisions, impeaching those judges whose decisions Congress disapproves, stripping the courts of jurisdiction to hear categories of cases that might yield results Congress and a President Gingrich dislike, and eliminating the seats of life-tenured federal judges--are all arguably constitutional.  But that doesn't mean that any of these extreme actions should be considered by Congress as available.

Of course the Tea Party fetishizes the Constitution, but it's worth noting that liberals do too; we just tend to interpret it differently.  As I discussed in my contribution to The Rule of Recognition and the U.S. Constitution, Americans lack a vocabulary for discussing political proposals that are unthinkable but not unconstitutional.  For example, in response to Roosevelt's Court-packing plan, opponents of the plan tried to shoehorn their objections into constitutional language by invoking the "spirit of the Constitution," even as they were unable to point to any letter (even expansively construed) that could plausibly be said to be violated by the Court-packing plan.

The right answer to Gingrich and others who pander to the tri-corner-hat crowd itself has three parts: 1) That they are wrong to think that those who framed and ratified the Constitution shared their current ideological views; 2) That even if they were right about the content of the original understanding, they would be wrong to equate the Constitution today with the original understanding; and most importantly 3) Constitutionality is a minimum requirement for legislation, not the measure of its wisdom.

This last point is one that judicial conservatives accept as definitive of judicial restraint, but the current crop of Republican candidates often talk as though one need only read the Constitution to know what policies to pursue.  Gingrich's attack on the courts is an example, but one can easily find others.  See, for example, Ron Paul's take on "the issues," virtually every one of which makes constitutional claims central to his policy claims.