December 20, 2011

A Segregationist Dog-Whistle In The Gingrich White Paper On The Judiciary

Now I'm not one who generally subscribes to the "dog-whistle" theory that candidates (especially conservative candidates) embed sub rosa messages which appeal to their supporters' baser instincts. But I can't help but be struck by an element of the Gingrich campaign's "white paper" on the judiciary that has caused such a stir in recent days and which I obliquely referenced in a post yesterday.


I'll cut right to the heart of it -- Gingrich would undercut a major constitutional ruling that destroyed the Jim Crow system that Democrats imposed upon the South for a century after the end of slavery.

In 1958, all nine sitting justices of the Supreme Court signed on to a judicial opinion in the case Cooper v. Aaron that asserted that the Supreme Court’s interpretation of the Constitution was supreme in importance to the constitutional interpretation of the other two branches of government, and that this judicial supremacy, all nine justices asserted, is a “permanent and indispensable feature of our constitutional system.”

The Supreme Court assertions in Cooper v. Aaron are factually and historically false.

Setting aside the fact that the Gingrich position on judicial review is "factually and historically false" and involves overturning two centuries of American legal and political precedent, let's look at the case that Gingrich is attacking -- Cooper v. Aaron.

It only takes a couple of pictures to show you what that case was about.

This one is iconic.


So is this one.


That's right -- Cooper v. Aaron was the Supreme Court decision that declared that the policy of "massive resistance" to desegregation of public schools must fall in the face of court orders that found that segregation to be unconstitutional. In what be one of the greatest moments in the history of the American judiciary, it held that neither mob rule nor official intransigence could be grounds for denying the essential liberties of American citizens regardless of their race. And I cannot find any way of interpreting this Gingrich campaign document as anything less than an assault on those principles.

By the way -- here's the context of the phrase with which Gingrich is taking issue.

What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

As you can see, Newt Gingrich proposes undoing not merely a major civil rights decision, but the seminal case of Marbury v. Madison itself, upon which more than two centuries of legal precedent and constitutional understanding have been based.

I'm not always a fan of the decisions made by some of our federal judges. I've ranted and railed against them more than once. But I find the status quo significantly better than the Gingrich proposal, under which an imperial president would undertake to ignore court decisions he did not like and Congress would take a shortcut around the constitutionally mandated impeachment process by simply abolishing the court of any judge whose rulings they disliked. So much for the rule of law.

And more to the point, I find it obscene that a presidential candidate in the Party of Lincoln would dare to hint that Jim Crow should have been allowed to continue even in the face of federal court rulings to the contrary.

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Comments on A Segregationist Dog-Whistle In The Gingrich White Paper On The Judiciary

I think you are wrong on this Greg. While Gingrich attacks the holding in Cooper v. Aaron that a decision of the Supreme Court acts as an amendment to the Constitution, absolutely nothing else in Gingrich's paper hints to the smallest iota that the holding was wrong as regards the treatment of Jim Crow laws, nor that the decision should not have been binding on the states. Your mixing apples with racist oranges here.

Indeed, if you read the portion of the Cooper decision you quote carefully, you will see that, while the Court declared their decision "supreme," in fact the only necessary part of the holding to decide Cooper was whether the law was binding on the state governments. Gingrich's criticism of the Cooper holding doesn't touch that bit.

Further, while Gingrich, in his paper, brings up Marbury v Madison as an arrogation of power not found in Article III, not a single thing in his paper suggests that he would try to remove that ancient power from our Courts. His problem is with Cooper, not Marbury. Indeed, implicit in his proposed fixes are that Courts will continue to make decisions on Constitutional Law.

But if you really want to get down to it, the decision Cooper rests upon, Brown v. Board of Education, was wrongly decided on the grounds presented. It would still be upheld today, and rightly so, on the alternative grounds of the intent of the drafters of the 13, 14th and 15th Amendments. But that is not how the Court reasoned, unfortunately making an activist decision out of what should easily have been cast as an originalist one.

I will grant you that several of Gingrich's proposals to redress the recent rise of judicial activism are repugnant. I think the bit about ignoring a decision of the Court is simply insane. But several of his proposals are not - and neither is his desire to tie the Courts to deciding Constitutional cases solely within the rubric of originalism. Otherwise, we have a politburo instead of a court that interprets the Constitution.

Gingrich has shown the courage of his convictions in raising the issue of Court's clearly departing from the meaning of the Constitution to impose their will on America. I repeat what I've said before. You can look at the cases and lines of cases I've cited in my post on this issue. You will find no cases where the question was a disagreement over original intent - with the sole exception of Heller. What you will find are cases where the break from original intent has been blatant and glaring. And every one of those cases have worked fundamental changes to our nation.

Gingrich should be applauded for his efforts, not demagogued for them. That is true even if you disagree with his fixes. See if you can come up with fixes that would work. That is what I attempted to do in my post. In sum, I respectfully think that your criticism of Gingrich's entire effort is, at best, problematic and unwarranted.

|| Posted by GW, December 20, 2011 09:00 AM ||

An attack upon Cooper is an attack upon Marbury -- and given that Gingrich later attacks Marbury, it is impossible to conclude anything other than that it is his ultimate target.

By the way, have you actually read the Cooper decision? It deals with two different aspects of the argument out of Arkansas -- the latter of which was that the states were not bound by the rulings of federal courts and could ignore them as they saw fit -- effectively taking the same position that Gingrich argues regarding the executive branch. The justices swatted that one down by reliance on a century-and-a-half of precedent on the matter. Half a century later, Gingrich ought to be swatted down on precisely the same basis.

By the way, I note in another post the problem in Gingrich's "court-unpacking" scheme.

But in the end, Gingrich is suffering from the same sort of arrogance that we see expressed regularly by Barack Obama. He's not only decided that he is the smartest guy in the room, but he's also that the hosannas emanating from his acolytes are the Gospel truth. If we want that, let's keep Obama -- at least we would be able to run against HIM in 2016.

|| Posted by Rhymes With Right, December 20, 2011 09:32 AM ||

So if I understand your position correctly, judicial activism and the living Constitution are fine with you - or at the very least you see no way or need to fix the situation. Is that correct?

An attack on Cooper is an attack on Marbury? That is a leap in logic. Have you read Gingrich's paper? Can you point to me anywhere that he says Courts should not have the right to interpret the meaning of the Constitution under Marbury? I can save you the time. It's not there. Further, have you read his proposed fixes? One of them is to impeach judges who do not decide matters of Constitutional law with fidelity to the Constitution. You can't get there if your saying judges have no right of Constitutional review under Marbury in the first place. That portion of your argument is completely groundless.

And yes, Greg, I am a bit insulted by your question on whether I have read Cooper. I have. Indeed, I pointed out in my initial comment to this post that: ". . . the only necessary part of the holding to decide Cooper was whether the law was binding on the state governments. Gingrich's criticism of the Cooper holding doesn't touch that bit." You are conflating two separate arguments. There is no question that the 14th amendment applies to the states and they must demur. ONE of Gingrich's arguments - and I think it a bad one - is that Cooper was wrongly decided and that the Executive can ignore decisions that are decided without a founding in the meaning of the drafters.

Clearly that is an extreme position, but you are ignoring other "fixes" that would simply require decisions based on the intent of the drafters. That is a much less onerous fix, it is one wholly within the power of the legislature, and it is largely an objective standard. Now in a fair number of instances, two very different verdicts can come out of the reading of original intent, and thus it is highly doubtful that judges could ever conceivably be punished for merely arriving at a conclusion contrary to what you, I or anyone else might like. But the very worst of the abuses of judicial activism would be curbed.

The Judiciary must be kept as a co-equal branch. But now it is imperial branch. If you see that as a problem, what do you propose as a systemic fix?

|| Posted by GW, December 20, 2011 01:01 PM ||
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