Yes Newt, There IS a Supreme Court in the Constitution
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
This is a case of getting something wrong, while saying something (arguably) right and unlike Ann Althouse, I am not giving Newt Gingrich a pass on this. Here’s what he said, in context:
In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.
(emphasis by Althouse.) So the larger paragraph is making this point: the Supreme Court does not have the power to command. Especially in the beginning of this republic, judicial review wasn’t designed to be a method of rebuking the other branches, it was sort of a judicial civil disobedience: they were refusing to enforce a law, because they believed it was contrary to the Constitution. Since the courts are very often a necessary part of any legal regime, it meant effectively that if they said a law was unconstitutional, it would be in fact a worthless dead letter.
But the fact is that the Supreme Court is in the Constitution, almost by name. For instance, here’s from Article I, Section 3:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
It is interesting that the Constitution didn’t require the use of the title Supreme Court. It could have been the “High Court of the Federal Republic” or just the “Ministry of Silly Walks” and as long as it was supreme in the judicial branch, that was adequate. Which only serves to highlight the weakness of Althouse’s defense:
It’s obvious to me — as a law professor who has studied and taught Article III of the Constitution for 25 years — that Gingrich is not denying that the Constitution provides for a Supreme Court. He’s denying the supremacy of that Court over the other branches. He’s stressing the checks on the judicial branch, which include Congress’s power to make “Exceptions and… Regulations” to the Supreme Court’s jurisdiction, and the idea that the Supreme Court is not the sole voice in the interpretation of constitutional law. This is routine stuff in a Conlaw I class. It’s what we conventionally talk about along with Marbury v. Madison. It’s not the slightest bit edgy, believe me….
He knows there’s a Supreme Court. It’s just not, in fact, supreme over everything.
But in the language of the Constitution, you can declare a court to be “supreme” without referencing any kind of domination of the other branches. And bluntly I am not sure Gingrich is aware of all of this. My feeling is that this is a case of Gingrich’s mouth getting ahead of the facts. In any case, saying something that is inaccurate in order to make a larger point that might be accurate is still being inaccurate.
[Posted and authored by Aaron Worthing.]
Newt?
DohBiden (15aa57) — 7/13/2011 @ 5:59 amAaron,
Then why exactly would he have said this?
Random (d84a07) — 7/13/2011 @ 6:03 amdoh
it would help if i said newt gingrich somewhere in the piece, right? d’oh!
Aaron Worthing (e7d72e) — 7/13/2011 @ 6:09 amMaybe.
I thought this headline was about an actual newt.
DohBiden (15aa57) — 7/13/2011 @ 6:12 amSo rereading closely, if I understand your position, Aaron, it’s that the constitution does, in fact, declare the supreme court to be “supreme” in the sense that it’s essentially supreme over the other branches where “judicial power” is concerned, i.e., interpretations of law.
If it’s truly supreme over the other branches where saying what laws (including the constitution) are concerned, why have them? Do the Presidency and Congress exist simply to reduce the Court’s administrative burden?
I’m being faecitious with my comment, but I think Althouse’s and Gingrich’s contention that the Supreme Court is supreme within the judicial branch, but not over the other branches, makes sense.
At a minimum, if the Supreme Court has supremacy over the other branches, it appears to be a limited supremacy.
Random (d84a07) — 7/13/2011 @ 6:27 amAnd to be fair to Gingrich, a limited supremacy is not really supreme. So Gingrich and Althouse would be correct to say the Supreme Court is not therefore “supreme” … over the other branches.
It is the one true supreme Court over all the other inferior courts, but it is not actually, really supreme over the other branches. It can, in fact, be limited in some cases by Congress’s regulations!
Isn’t that the point Althouse and Gingrich made?
Sure, Gingrich wants it to be less powerful over the other branches than it in fact might be, but he’s still correct in it not being supreme over them.
Random (d84a07) — 7/13/2011 @ 6:34 amSilly you.
DohBiden (15aa57) — 7/13/2011 @ 6:34 amI have found in reading several ‘Blog’s’ that Prof Althouse gets many things wrong, or at least following her reading of this or that.Many other law professors find fault in her reasoning. Maybe she spends too much time in the cold.
Charles Curran (d4fe0c) — 7/13/2011 @ 6:55 amAlthouse has this one right. The context of N.’s remarks make it perfectly clear what he meant.
SarahW (af7312) — 7/13/2011 @ 6:56 amAnd I really cannot abide Newt Gingrich (so I’d rather have him in error.)
SarahW (af7312) — 7/13/2011 @ 6:58 amYour post? Mole hill meets mountain.
Gingrich: “There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch”
John B. (1f16df) — 7/13/2011 @ 6:59 amI don’t see how Newt was wrong. The Constitution, by my reading, intended there to be one Court that was supreme over all the others. That is, that the other (lower) courts had to abide by the supreme court’s positions, including its overturning of other courts’ rulings.
I don’t see support for the larger interpretation of “supreme.”
jim2 (a9ab88) — 7/13/2011 @ 7:09 amI do like Althouse’s explanation, but that’s just my politics. i don’t like philosopher kings, so I like it when people say things that reduce the power of judges relative to other branches.
I wouldn’t be too upset if the legislature could interpret the constitution too. OK… yeah I would, I’m quite sure, all the damn time, but at least we could vote them out of office and have our constitution reinterpreted the way we want.
Aaron’s right that ultimately there words ‘supreme court’ appear in the constitution. Newt was inartful at best not to say ‘just because the words ‘supreme court’ appear in the constitution doesn’t mean there is a court supreme over the other branches in there’. He should have done that, because it’s a worthy direction to take a discussion.
Dustin (b7410e) — 7/13/2011 @ 7:16 amI know it’s dangerous to put too much reliance in the constitution’s capitalisation, but is it not significant that there is in fact no “Supreme Court” in the constitution, but only a “supreme Court”? I think that was Gingrich’s point.
Milhouse (ea66e3) — 7/13/2011 @ 7:16 amIt can and must. Unfortunately it has neglected that duty in the past decades.
Milhouse (ea66e3) — 7/13/2011 @ 7:17 amBoth Congress and the President have independent duties to interpret the constitution for themselves, and to uphold it according to their own understandings. When Congress passes legislation it knows to be unconstitutional, or when the President signs such legislation, relying on the judiciary to strike it down, they violate their oaths of office.
Milhouse (ea66e3) — 7/13/2011 @ 7:19 amOK, looking at the video, Althouse has it exactly right, and Aaron and other critics seem to be missing the crucial point. Gingrich did not say “there is no Supreme Court in the American constitution”; he said “there is no Supreme Court in the American constitution”. The emphasis is clearly there in his speech; and it’s clearly not there in the constitution, which is exactly his point. There is a “supreme Court”, but there is not a court which is supreme over all.
Milhouse (ea66e3) — 7/13/2011 @ 7:27 amThankfully, we have principled conservative judges.
Amen!
Power (16d6d6) — 7/13/2011 @ 7:33 amPower – Thankfully we have a stoner president, so none of that matters, right?
daleyrocks (bf33e9) — 7/13/2011 @ 7:38 amNewt? Isn’t he some guy who defended the choice of Dede Scozzafava as a Republican candidate?
phunctor (723ffd) — 7/13/2011 @ 7:41 amMuch as with Al Gore, Obama’s problem is he ‘never
ian cormac (d380ce) — 7/13/2011 @ 7:41 amexhaled’
True, and this happens all the time. They flip around on their understandings of the constitution as what their political needs change, and that totally undermines any credibility they’d have, anyway. At least the Court tries to avoid looking utterly results oriented (even though I suspect much of it is).
Agree with what you’re saying Newt was trying to communicate, but he should have taken the steps to make his point very clearly. These days, sadly, it’s just too easy to ‘gotcha’ someone for saying something’s not in the constitution when technically those words are.
It’s like The Emperor has no Clothes. A lot of people have such a limited understanding of the constitution that they will go way, way out of their way to bash a perceived error in order to establish their credibility/avoid discussing anything in detail.
Obviously I am not talking about Aaron. He isn’t going to just accept Newt is the smartest guy in the room, and these days, it’s hard to blame him.
Dustin (b7410e) — 7/13/2011 @ 7:54 amcan Supremes negate
ColonelHaiku (cc5c75) — 7/13/2011 @ 8:04 aman executive order?
Milhouse Obama
Supreme court weak branch
Timeslaiku (206ce5) — 7/13/2011 @ 8:16 amTruth like rain it hit us all
Newt no Deep Dish Cain
Since it’s left up to Congress to establish,and set the rules for inferior courts, It’s questionable whether the Supreme Court is even totally supreme over the judicial branch. In fact the Constitution specifically lays out where this supreme Court has jurisdiction and leaves any other powers to be named by Congress. It is quite within the power of Congress to forbid the Federal Courts to have any power of review over local law. No more courts over ruling legislatures or initiatives. And before someone mentions how “instrumental: courts were in the Civil Rights struggle, we should remember that they helped establish Jim Crow in the first place.
Mike Giles (3b9795) — 7/13/2011 @ 8:22 amI think the quotation from Article I, Section 3 is clear: There is to be a court that is supreme to all other courts. How you get anything more from that is the same rationale SCOTUS used in 1973 to find umbras and penumbras for “legislating” abortion policy.
Frank (167bb8) — 7/13/2011 @ 8:32 amuse lemon squeeza
ColonelHaiku (cc5c75) — 7/13/2011 @ 8:33 amI’m cold Italian pizza
that not rilly true
When does Obama nominate Diana Ross for the supreme court?
Heh.
DohBiden (15aa57) — 7/13/2011 @ 8:33 amI think you’ve misread Gingrich. He said that the Constitution clearly called for a supreme Court, that was supreme over the Judicial branch but not over the other two branches. However, in contemporary politics, there are those that want the whole country to believe that the US Supreme Court is the supreme authority above all other branches of government.
I think he is pretty clear on just what the Constitution meant, but is pointing out that others are not so clear.
Chuck Bartowski (4c6c0c) — 7/13/2011 @ 8:39 amI agree Chuck.
DohBiden (15aa57) — 7/13/2011 @ 8:41 amOf course not. An executive order is by definition internal to the executive branch; it’s an order by the president to his employees, in his role as their employer. So how would it ever come before a court? Can the “Supremes” negate the standing orders of the Senate?
Milhouse (ea66e3) — 7/13/2011 @ 8:42 amHe did. It’s not just what he “was trying to communicate”, it’s what he said. The only way to distort his meaning is to distort his actual words, by ignoring the emphasis he placed on “Supreme“.
Milhouse (ea66e3) — 7/13/2011 @ 8:46 amPeople seem to have an idea that executive orders are laws; that the president can rule by executive order. That is just not true.
Milhouse (ea66e3) — 7/13/2011 @ 8:47 amIf Obama were to issue an executive order for his subordinates to go to war with Finland, would that be unconstitutional? Yes. How would our system check that abuse?
If Obama were to issue an executive order for the ATF to confiscate all guns and the FCC to bar political advertisements discussing them, would that be unconstitutional?
I think the Supreme Court is exactly where this issue would ultimately arrive. Because, whether this was the intention or not, the Court is where the it’s decided what the law actually is.
I would think Congress should impeach him for these things instead. I suspect Milhouse would say that’s the right way to go, and otherwise, we need to be damn careful not to elect jackasses to the presidency. But that’s not how things have functioned. While I see the republican appeal of this view, I no longer trust the voters with that kind of power anyway.
Dustin (b7410e) — 7/13/2011 @ 8:47 amsome people call me
ColonelHaiku (cc5c75) — 7/13/2011 @ 8:54 amcolonel some call me gangsta
of love or maurice
Congress could censure or impeach him, or he could lose the next election. Other than that, nothing; unless he ordered his subordinates to commit a crime, or to do something that subjects them to a civil suit.
The acts ordered would be illegal, and any federal employee who obeyed the order would be exposing himself to criminal and civil liability with no qualified immunity, and that would end up in the courts. The order itself should not end up in court; the defendants might try to raise it as a defense, but any court worth its salt would not allow it, because it’s irrelevant. The president has no more power than any other employer to order his employees to commit crimes or torts.
Milhouse (ea66e3) — 7/13/2011 @ 8:55 amIt’s a case of house rule. Althouse and Milhouse (@ 7:16 am) have it right. If Newt is guilty of anything (besides being pussy-whipped, boring, and dead wrong on Dede Scuzzzy) it’s using a clumsy rhetorical device.
ropelight (8c1259) — 7/13/2011 @ 8:57 amcan U.S. survive
ColonelHaiku (cc5c75) — 7/13/2011 @ 8:58 amBarack Milhouse Obama?
only time will tell
Aaron, when I told you that your “Lara Logan owes the world full disclosure” post was the silliest thing you ever wrote, I was NOT challenging you to top it!
Icy Texan (5914b7) — 7/13/2011 @ 8:59 amhalf a mill for some
ColonelHaiku (cc5c75) — 7/13/2011 @ 9:02 amjewelry ropelight? pussy
whipped not sufficient
pussy-flogged closer
ColonelHaiku (cc5c75) — 7/13/2011 @ 9:05 ambut still no cigar colonel
strain to find right words
stop! in the name of
ColonelHaiku (cc5c75) — 7/13/2011 @ 9:08 amNewt before you break his heart
think it oh-oh-verrrrrrr
Colonel, don’t jump to conclusions.
ropelight (8c1259) — 7/13/2011 @ 9:11 amNewt might just be
laundering campaign contributions.
holy cow ropelight
ColonelHaiku (cc5c75) — 7/13/2011 @ 9:22 amyou may be onto something
tiffany cartel?
It’s very very long been decided that the court is where it’s decided what the law is. The law regarding what the president can and cannot do.
Since largely these orders are edicts made in furtherance of law, it’s only sensible that they have to be authorized by law. Similar to a signing statement, if the president contradicts the law, courts should be able to rule that is wrong.
Newt has an interesting historical point that would amount to a massive departure from how we currently handle this issue.
And I’m not sure we even want that. The only way to stop Obama is to impeach him? That creates a powerful barrier to constraining the growth of government.
It’s too idealistic in the extreme.
Now, what happens when a President makes an executive order that goes beyond what is authorized by Congress? For example, Truman taking over steel mills?
What we need is not to remove the Supreme Court from a position of checking the constitutionality of the other branches. What we need is the other branches to exercise a similar check on constitutionality. We can talk all day about the perfect system, but in the American system, Newt is quite wrong. Once the Court interprets the constitution one way, even a way I realize is wrong, the only way to fix it is to amend the constitution or amend better justices.
When Newt makes the point that the word ‘supreme’ wasn’t capitalized, by his inflection, I think he’s opening himself up to the fact the words he said were not literally true.
So Newt is trying to make an idealistic and interesting point, but did so in a way that forces him to explain saying something that, taken literally, is false.
Yeah, it’s not silly to point that out.
Dustin (b7410e) — 7/13/2011 @ 9:24 amEvery time I read about a “conservative” (or however you want to describe people like Gingrich or those other non-Democrats who take issue with judicial review) mention The Federalist nr. 78, I am always struck by an overwhelming certainty that they either never read it or that they read only what they wanted to see and just ignored the rest; and as a consequence I am always baffled why no one ever simply quotes it:
“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
Now I know that is written with late 18th century grammar and rhetoric.
I know that it doesn’t say what people who despise judicial review want it to say.
(It also doesn’t say what dimbulbs writing for Time magazine want it to say.)
But come on!
It is nice that people actually RTFM, but it would be even nicer if they actually accepted it.
(I would also suggest reading Federalist nr. 81 which also directly addresses this, and indeed examing all from nr.78-83 which concern the judiciary.)
Sam (8d527c) — 7/13/2011 @ 9:27 amwanna improve life?
ColonelHaiku (cc5c75) — 7/13/2011 @ 9:28 amdoc says stop drinking and don’t
read the newspapers
You are wrong on this one, Aaron. Newt was making a specific point, his point is arguable but not “wrong”.
Newt has a problem with saying things that operate at too high a level for political rhetoric, I grant.
SPQR (26be8b) — 7/13/2011 @ 9:35 amGingrich understand
Timeslaiku (206ce5) — 7/13/2011 @ 9:48 amSupreme constitution and
pompetus of love
Newt bad judge of staff
Timeslaiku (206ce5) — 7/13/2011 @ 9:52 amof Supreme of women but
wise on jewelry
Diana Ross say
Timeslaiku (206ce5) — 7/13/2011 @ 9:54 ambest seat for Supreme ever
is Gene Simmons face
have love hangover
ColonelHaiku (cc5c75) — 7/13/2011 @ 9:58 amshe don’t wanna get over
but Flo she don’t know
Aaron isn’t saying Newt’s larger point is wrong. He’s noting that the constitution does actually designate a supreme court.
I personally think it’s fine to make points like Newt’s, but if Newt wants to be on the big stage, he needs to make his remarks realistically and carefully.
And when someone runs for President, they are also running as the appointer of the Supreme Court justices who ultimately will do precisely what Newt claims they shouldn’t. Stubbornly holding to the ideal that they shouldn’t doesn’t help me know he’ll appoint justices who will do this task appropriately.
And perhaps that’s his point. He’ll appoint Clarence Thomases who will honor every absence of authority. I worry that at this late stage in the game, that is a long term problem when a president does, in fact, need to be constrained by someone, even if that constraint is not ideal.
Just my opinion, but I think it’s too late to fix Newt’s larger issue, and just in time to solve more pressing ones today.
Dustin (b7410e) — 7/13/2011 @ 10:05 amDiana Ross say
Timeslaiku (206ce5) — 7/13/2011 @ 10:11 amonly room for one diva
Flo collateral
“…It is the one true supreme Court over all the other inferior courts, but it is not actually, really supreme over the other branches…”
The People are Sovereign!
AD-RtR/OS! (e05987) — 7/13/2011 @ 10:35 amThomas Jefferson, people.
Oh, and The Federalist Papers, #78.
Fritz (76a596) — 7/13/2011 @ 11:33 amSeriously, people. This entire thread is much ado about absolutely nothing. If Newt had said “The Constitution does not grant the Supreme Court supremecy over the legislative or executive branches,” then this thread wouldn’t even exist.
This is no major gaffe. As others have pointed out, it’s no gaffe at all! There are many reasons why Newt should drop out of the presidential race; this is NOT one of them. Frankly, Aaron is acting like a liberal, parsing the most meaningless thing (witness Chrissie leg-tingle’s latest anti-Bachmann rant, foaming over her husband’s gay re-education center) for the sake of making Gingrich look bad.
Icy Texan (5914b7) — 7/13/2011 @ 11:40 amBut Aaron actually carefully explains what Newt was ultimately saying, not stripping the context at all.
He simply doesn’t give Newt a pass for saying the constitution doesn’t say ‘supreme court’.
I wish the left was as fair as you’re saying they are, to go out of their way to seek the context that explains a gaffe. Aaron even links initially to Althouse’s explanation. Why claim he’s doing the opposite?
I don’t know that Newt knew the constitution says the word ‘supreme’. You are guessing if you say he knew. If Newt knew that, it’s odd he phrased it the way he did.
How many times does Aaron have to explain that he thinks Newt was trying to make a larger point that is arguably accurate?
He’s bad at politics. There’s his main problem right there.
Dustin (b7410e) — 7/13/2011 @ 12:06 pmFor the I-can’t-count-th time, Gingrich didn’t say that. He carefully said that the constitution doesn’t say “Supreme Court”, with that emphasis. Instead it says “supreme Court”. And he explained that in the very next sentence, so his audience couldn’t go away with the wrong impression.
Milhouse (ea66e3) — 7/13/2011 @ 12:16 pmNo.
Direct quote, and not true.
You are asserting to know, for sure, that Newt was saying something else. His context shows he was making the larger point Aaron readily grants, but there’s no clue that Newt realizes there is a supreme court in the American constitution. You’re just sure he meant that because he changed the pitch of his voice when he said the word supreme, which I don’t think proves anything. I think Newt was saying he knows courts are mentioned, and it either slipped his mind that the word supreme is in there too, or he was too clumsy to say “even though the term ‘supreme court’ is in there, they meant supreme over courts, not other branches”.
Which again is illiterate anyway.
Dustin (b7410e) — 7/13/2011 @ 12:20 pmAnyway, I don’t see the point in claiming Aaron is misbehaving after going this far out of his way to give Newt’s larger point a full explanation and link Newt’s clearest defender on this point.
He just doesn’t give Newt a pass for knowing what the constitution says. Why should he?
Dustin (b7410e) — 7/13/2011 @ 12:22 pmThis idea Milhouse knows for sure Newt was saying the letter “s” was not capitalized is a great example of wishful thinking. I understand the plausibility of this point, but to assert it’s the only truthful interpretation is just not fair.
Dustin (b7410e) — 7/13/2011 @ 12:23 pmYeah, that’s the most likely explanation: Newt doesn’t know what the Constitution says.
Like I said, much ado about ABSOLUTELY nothing.
Icy Texan (5914b7) — 7/13/2011 @ 12:31 pmSorry to post another time in a row, but
is hardly a direct contradiction of Milhouse’s interpretation anyway. Hell, Milhouse is probably right. It’s not a very big deal, and the larger issue is more interesting anyway. I’m simply noting that folks seem to be raining a little hard on Aaron despite Aaron offering the view favorable to Newt.
Dustin (b7410e) — 7/13/2011 @ 12:33 pmThen explain his very next sentence. Go on.
Milhouse (ea66e3) — 7/13/2011 @ 12:38 pm“There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch.” Explain that, if he didn’t remember that the phrase “supreme Court” appears in the constitution.
Milhouse (ea66e3) — 7/13/2011 @ 12:40 pmSeems self explanatory.
Just as the word executive order doesn’t appear in the constitution, and Newt could say there are edicts from our president, called executive orders, which he doesn’t think the supreme court should have the authority to rule unconstitutional (though of course they do have that power in reality, whether you think they should or not).
Yes, I grant Newt is talking about a court that is merely supreme over the courts. Aaron did to. I’m not even saying your lowercase S interpretation is wrong. I’m merely saying it’s strange to insist no honest interpretation otherwise can exist.
Dustin (b7410e) — 7/13/2011 @ 12:49 pmWasn’t it Andrew Jackson who challenged the Supreme Court to enforce one of its rulings? I think it had to do with the Trail of Tears. He was determined to remove the natives in spite of a ruling of the Supreme Court.
Terrye (368a41) — 7/13/2011 @ 12:54 pm“Mr Marshall has made his decision, now let him enforce it.”(sic)
AD-RtR/OS! (e05987) — 7/13/2011 @ 1:00 pmIt wouldn’t be the worst thing in the world for a bold and righteous leader to actually do something like that. It’s a pretty good reason to support Newt (not that I do anymore).
Dustin (b7410e) — 7/13/2011 @ 1:04 pmI nominate Diana Ross to the supreme court.
Who agrees with me?
DohBiden (15aa57) — 7/13/2011 @ 1:06 pmI don’t know what you’re talking about, Dustin. Gingrich said this:
Read Althouse’s quotation of him and watch the video — that’s what he said.
Random (d84a07) — 7/13/2011 @ 1:25 pmQuite.
Random (d84a07) — 7/13/2011 @ 1:29 pmListen to yourself. Just read your own words back to yourself, and see if they sound even remotely plausible. Yes, the phrase “executive order” doesn’t appear in the constitution; and that’s precisely why he didn’t offer an explanation for it.
Just read that sentence again: “There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch.” The meaning here is clear: he is explaining the term “supreme Court” that appears in the constitution; the very term that you and Aaron would have us believe he’d forgotten was there. If he didn’t think it was there, why on earth would he be explaining it?
Come on, do you honestly think it’s plausible that Gingrich is so unfamiliar with the constitution as to have forgotten that it establishes a supreme court?! Do you think he didn’t check his facts before he went up there? He is a professor, after all — a real one, not a very-part-time adjunct like Obama.
Milhouse (ea66e3) — 7/13/2011 @ 1:30 pm… and, if so, he’d say:
… in the very next sentence after making his point about their being no Supreme court, emphasis added by him?
What are the statistical odds that would be his subsequent sentence, using the words “court” and “Supreme” in it? He was clearly — and obviously — saying that the supreme Court is, in his opinion, supreme within the judicial branch, but not Supreme over the executive branch and Congress (who can pass regulations on the “Supreme Court”!).
Random (d84a07) — 7/13/2011 @ 1:39 pmHere, let’s try this:
Anyone that thinks Gingrich doesn’t know, or doesn’t understand what the Constitution says is WRONG.
Anyone that thinks Gingrich said, either deliberately or mistakenly, that the Constitution does not establish the Supreme (big “S” or small “s”) Court is WRONG.
Anyone that thinks the mere existence of Ann Althouse’s defense of Newt somehow proves that there must be something to defend is … wait for it … WRONG.
Icy Texan (5914b7) — 7/13/2011 @ 2:00 pmWell, on this particular clause, anyway, because he directly addressed it. I’m not the man’s greatest fan in the world, as you will surely have gathered.
Milhouse (ea66e3) — 7/13/2011 @ 7:18 pmSorry, you’re just trying too hard.
The word court appears, and we all know the term Supreme Court, so Gingrich’s comment actually would have made sense had the Constitution not used that term, and we came to it another way, just as we call presidential edicts ‘executive orders’.
No, your claim there is no plausible interpretation but yours is too strong, and frankly, my point is that Aaron is actually presenting Newt’s case anyway. He just doesn’t want to cut him slack for how he phrased this.
Your mileage can differ, but Newt should have explained this more carefully. One of my first comments gave an example of how he could easily have been more clear than your ‘inflection means uppercase’ thing.
Dustin (b7410e) — 7/13/2011 @ 7:22 pmNewt was and is correct, this is nitpicking and completely inconsequential.
SiliconDoc (7ba52b) — 7/14/2011 @ 2:55 amYou can be certain the libtards will claim Newt said there should be no Supreme Court.
Dude, the entire concept of “judicial review” itself was never ensconced in the Constitution. That was an entirely post-facto invention of the SCotUS — John Jay’s, IIRC (I’m feeling too lazy to go dig it up on Wiki).
It seems a reasonable extension of what IS in there, combined with the overall purpose of the SCotUS being a third branch and a significant check on the actions of the other two branches.
…but it still just ain’t there.
I’d kind of assume this was the sort of idea that Newt was aiming for when he said that — the modern idea of the SCotUS with its judicial review powers just isn’t present in the Constitution, at all.
.
Smock Puppet,, Grammatical Analyst III (c9dcd8) — 7/14/2011 @ 11:43 pmIt’s certainly in the Federalist, which is the chief defense of the constitution. And it’s obvious that a court can’t enforce a purported law which it believes to be void because it contradicts the constitution.
Gingrich’s point isn’t that the courts should enforce laws they believe to be invalid, but that the courts’ opinion that a law is invalid is not binding on the other branches; each branch is entitled to follow its own view of a law’s constitutionality.
Milhouse (ea66e3) — 7/15/2011 @ 12:19 amTaking a direct quote of constitutional language and saying it’s not in the constitution is an obnoxious at best and ignorant at worst way to make a point. It’s meant to be jarring, I guess? Like if I were to say ‘there’s no such thing as freedom of assembly in the first amendment’ when trying to actually distinguish the freedom appearing in the bill of rights against some other concept of it.
True.
Yet it’s how things are going to work. I don’t see how we could have an actual system where judges do not have to frequently figure out what the law actually says, and also deal with conflicts and constitutionality.
Now, that’s not to say the Court doesn’t go too far. I can think of many departures in interpretation that should have come from an amendment, but the justices wanted a certain outcome.
But at some level, it is mandatory, I would say necessary and proper, that the court system do much of what Newt is saying it can’t do when it decides a law or presidential act is not constitutional. Newt is claiming one branch is weaker than the others as though that’s in the constitution somewhere too. It’s not clear to me that when Congress and the Court differ on what the constitution says, why the Court shouldn’t win out. Just my opinion.
The way Newt made his point was stupid masquerading as brilliant. I’m used to this from him. I grant he is moderately intelligent, but I wouldn’t rank him at the Bush 43 or Palin or Romney level.
And it’s actually better for Newt if he honestly forgot the Supreme Court is listed in the constitution than if he had remembered and as so unskilled he said something that is literally incorrect, in hopes of making a colorful yet basic point. It’s the exact opposite of Palin’s 1773 ‘gaffe’, for example, which helped her carry her point and embarrass her critiques because of clever crafting.
I don’t give him bonus points for having a reputation for intelligence when it’s so repeatedly called into question.
Dustin (b7410e) — 7/15/2011 @ 12:41 am“But the fact is that the Supreme Court is in the Constitution”
We should probably fix that one of these days.
Dave Surls (3ea380) — 7/15/2011 @ 7:42 am