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September 06, 2011

A Few Thoughts On Yesterday's South Carolina Presidential Forum

Yesterday's Palmetto Freedom Forum was an interesting opportunity for 5 candidates (Bachmann, Cain, Gingrich, Paul and Romney. Perry bailed to tend to his duties as Governor in light of the wildfires in Texas and Huntsmann, meh, who knows or cares) to discuss a number of issues in a long form give and take with Sen. Jim DeMint, Rep. Steve King (IA) and Professor Robert George of Princeton. Each candidate was alone on stage and answered more or less the same questions.

I want to focus on one question Professor George asked in one form or another of each candidate. Here's how he phrased it to Bachmann but it was essentially the same for all.

Would you as president propose to Congress appropriate legislation pursuant to the 14th Amendment to protect human life in all stages and conditions?


Because, as I say, some people believe that a constitutional amendment would be needed to overturn Roe vs. Wade, and short of that, the best we can do is put some limitations around the edges and prohibit federal funding, as we have done in the Hyde amendment.

But my question goes to a matter of constitutional principle concerning the respective rules of the government. President Lincoln famously said in his first inaugural address that if we permit the policy of the government on matters that are essential to the whole people to be determined simply by the Supreme Court, we will have abdicated our responsibility, handed over self-government to that eminent tribunal, as Lincoln said.

So, given the clear mandate of the 14th Amendment, empowering Congress to enforce the guarantee of equal protection, shouldn't Congress act on that now?

What George was doing here was really more than your average abortion question. He was inviting the candidates to address the balance between the courts and the political branches when it comes to interpreting and enforcing the Constitution.

Bachmann, after a good bit of prodding, answered that she'd be willing to force a showdown with the courts over the issue but she really didn't engage with the issue.

The candidate who really took the bit here was, not surprisingly, Newt Gingrich. I know, I know, but just stick with it. I's worth it.

Below the fold is part of Gingrich's answer

Note that the transcript says the questions are from Steve King but I watched it and it was Robert George.

[George]Now, many argue today we need a constitutional amendment to overturn Roe versus Wade. However, section five of the 14th Amendment, as you know, expressive authorized the Congress by appropriate legislation to enforce the guarantees of due process and equal protection contained in the amendment's first section.

So as someone who believes, as I know you do, in the inherent and equal dignity of all members of the human family, including the child and a woman, would you propose to Congress appropriate legislation pursuant to the 14th Amendment to protect human life in all stations and conditions without waiting for a constitutional amendment?

NEWT GINGRICH, (R) PRESIDENTIAL CANDIDATE: Yes. And there's a reason -- it goes much deeper. There are five or six other issues, such as one nation under god, such as the right to have a cross on public land. There are a number of issues where the courts have now dramatically usurped their power.

Let me add to your Lincoln quote. Jefferson, being written about the question of whether or not there could be a Supreme Court, wrote back, that would be an oligarchy. Think about it. This is the center of American exceptionalism. We're a people of law. To be a people of law, you have to have a structure. The structure of the constitution says there's a formal way to attend the constitution. It's a very complicated process.

The idea that the founding fathers also meant to say oh, by the way, by a five to four vote, appointed lawyers can be the equivalent of a constitution convention is an absurdity.

All of this starts in 1958 with a Warren Court assertion of supremacy, which is profoundly wrong. The Supreme Court is supreme in the judicial branch, and the judicial branch is one of the three branches. It's the third branch mentioned in the constitution, and in the "Federalist Papers," Alexander Hamilton says explicitly it will be the weakest of the three branches.


GINGRICH: But let me say this. That's part of the national debate. That's not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States.


STEVE KING: I suspect what's going on through the minds of many of our viewers across the nation is this -- Speaker Gingrich has a right to be concerned about judicial overreach. That's clearly a problem. We don't want the rule of law to deteriorate into the rule of unelected lawyers. On the other hand, we need to defend judicial independence. So would your last statement be a valid warrant for concern that you're someone who doesn't respect judicial independence, the independence of the judiciary?

GINGRICH: I respect the independence of the judiciary in judging individual cases unless the person doing the judging proves to be so extraordinarily out of the context of the American life and American law that they shouldn't be there.

And I think there are occasions -- I mean, you can't say we have a corrective balance between the three branches, except by the way that these two should never use it. I mean, either there is genuine tension between the three branches and the legislative and executive have a right on occasion to correct the judiciary, or the judiciary is a dominant branch and can dictate to the rest of us. As Speaker Pelosi once said, the Supreme Court speaks it's the voice of god. Well, I don't agree with her.

There's more give and take at the link and even though Newt is a non-starter for everyone, it's well worth the time.

This is pretty radical thought and I don't think anyone in the field could make it as well as Gingrich (or really try, I doubt it work out well for most of them. This is simply Newt's wheelhouse).

The last bit that I made bold is especially important. Modern jurisprudence is based on the idea that everything the political branches does is simply a first draft for the real deciders in robes.

Not surprisingly the defender of the status quo was Mitt Romney. Jen Rubin at the Washington Post is pretty excited that Mitt was so gosh darn reasonable.

With the exception of Paul and Romney, all the candidates went along with this academic exercise. But of course, for 200-plus years we’ve lived with the rule of law, allowed the court to interpret the Constitution and avoided constant constitutional crises. Richard Nixon didn’t ignore the Supreme Court ruling on the tapes. Dwight D. Eisenhower didn’t ignore Brown v. Board of Education. And certainly George and others would have a fit if President Obama ignored a ruling holding ObamaCare unconstitutional.

The notion that we encourage elected officials to ignore the Supreme Court is folly. And frankly, it made all the pols who went along with it seem more than a little loony. When we say that each branch has the obligation to uphold the Constitution that means each should exercise self-restraint and evaluate the constitutionality of its actions before exercising its powers; it is not a license for lawlessness.

Romney patiently told George he wouldn’t go down the road of constitutional defiance. He would appoint judges who followed the language and intent of the Constitution. He specifically rejected the invitation to call for a constitutional standoff. It was a grown-up moment.

Apparently accepting 70 years of liberal judicial and governing philosophy is "grown-up" while having a thorough and correct understanding of the way the federal government is supposed to operate is what? Childish?

Now, I don't think this should be the centerpiece of anyone's campaign but I'd like to know our candidate actually knows this stuff and supports it. Though if you look at how the other candidates answered the question you see they kind of know the words to say but aren't really familiar or comfortable with the ideas behind it. The only thing worse than not making the case for getting the political branches back in the constitutional game is making it badly. That could do more damage than it would help. I would have loved to have heard Perry on this topic.

I really urge you to read Gingrich's whole presentation. He was fantastic. Of course, it was a format that suited him well, far better than any of the other candidates. No one in American politics but Newt could tie together the benefits of off shore drilling to states with the expansion of the Panama Canal and a local infrastructure project. It was masterful.

It's a tragedy that Newt simply is temperamentally unsuited to be President (I include his couch shot with Pelosi in that). He's one of the best conservative thinkers and communicators we have. Alas, it's not enough.

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posted by DrewM. at 11:51 AM

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