In the Washington Post, George Will writes that Newt Gingrich’s “campaign against courts repudiates contemporary conservatism’s core commitment to limited government.”
Will writes, “[Gingrich] says that the Founders considered the judiciary the ‘weakest’ branch. Not exactly. Alexander Hamilton called the judiciary the ‘least dangerous’ branch (Federalist 78) because, since it wields neither the sword nor the purse, its power resides solely in persuasive ‘judgment.’”
But Hamilton did indeed say in Federalist 78 that the judiciary is, by its very nature, the “weakest” branch of government. In fact, he wrote that “the judiciary is beyond comparison the weakest of the three departments of power” (emphasis mine).
Gingrich deserves credit for reminding Americans that, except for the Supreme Court (which was established by the Constitution), the entire federal judiciary was established and designed by Congress. As such, it can certainly be redesigned or reined in as necessary. In their early days, the federal courts, filled with Founders and those whom the Founders had appointed, were exemplary (despite attempts by modern law school professors to lump judges like the great John Marshall in with the policymaking judges of today). But on the eve of the Civil War, in the case of Dred Scott v. Sandford, the Court lost its way, and judges have too often since, to use Hamilton’s formulation, continued to exercise “WILL instead of JUDGMENT” (capitalization in original), the “consequence” of which is “the substitution of their pleasure to that of the legislative body.”
What was Hamilton’s remedy for such a violation of the separation of powers and of republicanism? If the courts substitute “their pleasure to that of the legislative body,” he writes, “there ought to be no judges distinct from that body.” In other words, if judges fail to act like judges — applying the law as written by others — and instead act like legislators — applying the “law” as they would like it to be — then there is no point in having judges. Gingrich’s proposed solutions are far less radical than this.
Over the years, through the sheer exercise of their own will, judges have imposed upon the American people slavery in the territories, abortion in all fifty states, and more recently (particularly at the state level) same-sex marriage — to list just a few of the most egregious examples. The principal problem with such rulings is not that they have been wrong on policy grounds — although they have been — but rather that they have violated the plain meaning of the constitutional text and have therefore represented a usurpation of power by the judiciary at the expense of the people, our constitutional forms, and the rule of law.
As such, it is surely consistent with a commitment to limited government to help ensure that judges apply the plain meaning of the Constitution, rather than using it as a vehicle for imposing their own will. In fact, a core principle of limited government is ensuring the existence of an independent judiciary that will fairly, impartially, and steadfastly construe the Constitution and law as written. Whether one agrees with all of his proposals in this realm or not, Gingrich deserves credit for highlighting the importance of keeping the courts in check and for offering solutions in an attempt to right this wrong.