On: Auxiliary Precautions – Gingrich v. Madison

by: Joshua Howell 

Upon witnessing Newt Gingrich's spike in the polls late last year, one hardly needed William F. Buckley's famed perspicacity to predict an eventual downfall. Mr. Gingrich is, by all accounts, a mess of political and moral contradictions. His romantic life has made our generation – recent history's least likely to marry – cringe. His prior support for healthcare mandates, ethanol and legislative attempts to curb global warming have all the trappings of a liberal politician. His $1.6 million connection to Freddie Mac ties him to the right's idea of big government as little else can. He is, as George Will, the current vanguard of conservative thought, noted, distinctly "anti-conservative."

What pundits failed to predict, however, was an aggressive attack on America's judiciary, an attack which ultimately, if briefly, propelled Mr. Gingrich to the top. That was our mistake. Far from surprising, it should have been expected; conservatives have long been beset by the courts:

Roe v. Wade effectively legalized abortion, and is now a rallying call for the right. The number of prenatal lives taken a year (note: not "lost," but "taken") has some crying holocaust.

The Slaughterhouse Cases of 1873 are seen by conservative thinkers as the court's first of many assaults on "economic liberty." If an individual's economic activity can be regulated, they ask, what can't?

But what has most recently burned the Republicans is the court's support for same-sex marriage. Of the six states which have legalized same sex marriage, four have done so at the behest of the judiciary. This tactic has sat most uneasily in conservative Iowa, which, conveniently, was the first in a series of Republican caucuses and primaries.

Therefore, an attack on the courts from one of the right's more excitable and opportunistic members was due. Few, however, could have predicted the heights of its short lived success.

Mr. Gingrich after winning the South Carolina Primary

Enter – stage right – the chimerical Newt Gingrich. With his characteristic bombast and confidence, for a time he captivated Iowans, and in so doing validated a fear in political thought traceable to the time of Aristophanes (d. 386 B.C.): that the power of rhetoric could serve to "make the weaker argument stronger."

And it is the weaker argument. We know because we've had this conversation before.

It is a conversation that began with what the country's founders – being well studied in politics – recognized as a fundamental paradox of democracy: majorities, while indispensable, were inherently dangerous. It is a paradox with a long and erudite pedigree.

Thomas Hobbes openly fretted that democracy, if unchecked, would devolve into anarchy.

John Stuart Mill wrote that, through its laws, society could practice a "social tyranny more formidable than many kinds of political oppression…" This "tyranny of the majority," as he termed it, arises from the possibility (even likelihood) that "the people consequently may desire to oppress a part of their number…"

No doubt Madison, the "Father of the Constitution," had these philosophers in mind when he penned Federalist 51: "In framing a government," he argued, "the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government: but experience has taught mankind the necessity of auxiliary precautions."

And "auxiliary precautions" did The Founders deliver.

Our electoral democracy necessitates consensus building, "supermajorities" in the Senate encourage compromise, and the President's veto power can override it all.

But the last in this series of government impediments is the all important judicial review.

The "least dangerous" branch

It is this final precaution Mr. Gingrich fails to comprehend. Judges are America's referees, determining when the government has overstepped its bounds and, subsequently, infringed upon our rights. To do their jobs efficiently, as any referee, judges must be autonomous.

How autonomous? Take note of Article III of the Constitution, which says that judges pay "shall not be diminished during their Continuance in Office."

The reason, as Madison explains in Federalist 47, is that "power over a man's subsistence amounts to a power over his will." Autonomous indeed.

Or take Montesquieu, one whose quotes are peppered throughout The Federalist (again, from 47): "There can be no liberty… if the power of judging be not separated from the legislative and executive powers."

By wishing to remove judges from their posts due to "anti-American" rulings (whatever that means), Mr. Gingrich blurs to the point of erasure the line between the legislature and judiciary, and in doing so threatens the liberties enshrined in the Constitution.

Yet it is not there Mr. Gingrich ends his jeremiad. He opines in a position paper, that "if the Supreme Court were to hand down a decision concerning the constitutionality of the executive branch's war making powers with which neither the executive nor the legislative branches agreed, we are supposed to believe that the only recourse to checking this decision of the Supreme Court is to pass a constitutional amendment. This view is clearly fatally flawed.

"Drawing together 290 House members, 67 senators, and 37 states to pass a constitutional amendment is a difficult and time-consuming task. It is little wonder that the American people lose interest, shrug their shoulders, and give up on the fight if they believe they have to do so in order to correct a decision of five fellow citizens serving on the Supreme Court."

To The Founders, this was the precise intention. When the judiciary determines whether government has surpassed its limitations, judges use the Constitution as a rulebook. For that rulebook to be effective, it can't simply be rewritten at a whim – even at the majority's whim. Some things a government ought not be able to do.

Changes to the Constitution, we are told (in what I promise is my last reference to The Federalist, this from Number 79), are reserved for "great and extraordinary occasions." Until such times are upon us – which would be evidenced by the strong majorities necessary to change the Constitution – the judiciary is necessarily independent, its rulebook impervious to change.

Beyond our grasp

We needn't search far for direct implications; there are ramifications for us as college students.

Consider our most treasured right at this university: freedom of expression. It has long been said (to the point of becoming cliché) that colleges are "marketplaces of ideas." To this end, the courts have been resolute in defending the freedoms necessary so this might sustain.

There is Burnside v. Byars (1966) which stated that school officials "cannot infringe on their students' right to free and unrestricted expression" while "the exercise of such rights in the school buildings and schoolrooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school" – such interference would then encroach on others' rights.

Or Gay Student Services v. Texas A&M, which offers this delicious quote: "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

Even at first glance, these rulings are innocuous, and certainly not "anti-American," to coin Mr. Gingrich's phrase. A legislative usurpation of the courts could not possibly be borne from such judgments.

That, however, is not the point. It isn't sufficient that governments merely be disinclined to do things; political philosophy (and subsequently, political science) must begin its foundational considerations with the possibility of bad government.

What The Founders understood, is that in a free and open society, in which matters are decided by representatives chosen by the people, some things, absent significant and sustained disagreement by the populace, are simply not up for grabs.

To defend these rights, even from ourselves, we need an independent judiciary.