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.