Gingrich Finds Judicial Review Inconvenient

Written by Les Francis on Monday December 19, 2011

Newt Gingrich claims to be an historian (rather than, heaven forbid, a lobbyist), who was paid over a million dollars by Freddie Mac. Taking the former House Speaker at his word—if only temporarily—one has to assume that the giant, federally-protected home mortgage security company wanted Gingrich to help it better understand the historical events and forces that have shaped our political processes and institutions; his history lessons, it is implied, would help Freddie further its interests on Capitol Hill and within the Executive Branch. All of that would be a completely legitimate purpose, albeit a tad expensive one (even by K Street standards).

One cannot help but wonder, however, just what Mr. Gingrich said--from a historian’s perspective, of course—about one of the most consequential events in our nation’s history, the 1803 Supreme Court decision known as Marbury vs. Madison.

It was that landmark case wherein Chief Justice John Marshall, a Federalist icon, led a majority of justices to formulate and decree the principle of judicial review.

I don’t know when I first heard or read about Marbury vs. Madison—it was probably in junior high school; but, I do know that I and my peers read and discussed it in U.S. History and Civics classes many times in subsequent years, both in high school and as an undergraduate and graduate student. We learned that Marbury was a watershed moment, “a big friggin’ deal,” we might call it today. And it has served as a bedrock principle of our republic ever since, for it resides at the core of the separation of powers.

Because of Marbury, the federal judiciary is the recognized and essential referee when something has to be called in or out of constitutional bounds. As a democratic society we’ve gone along with that system for a very good reason: Someone has to have a whistle and a yellow flag, and the accompanying authority and respect to make the calls stick. Presidents must accept the Courts’ decisions, as must Congress, as must we all. We don’t give the loudest or most shrill people in the stadium the power to reverse the ref’s verdict. Nor do we turn to Gallup, Roper, or Harris to make the call.

We can disagree with the Court’s decisions, and have, from Marbury, to Dred Scott, to Roe vs. Wade and Bush v. Gore---and thousands in between and since. But we obey and respect them because the alternative is chaos and, for some, grievous injustice.

So when Mr. Gingrich rails against “activist” or “elitist” judges, or when he accuses the judiciary of being dominated by “un-American” values, we might reasonably conclude that the former Speaker is a somewhat unhinged and dangerous demagogue, rather than merely an objective (non-lobbying but high priced) historian. On the other hand, if his statements are an accurate reflection of Mr. Gingrich’s knowledge and understanding of American history, maybe Freddie Mac should seek a refund.