Sunday, December 18, 2011

Newt's Comments on the Judiciary

People understand that we have three branches of government and that that's a good thing.  But when the three branches act as they ought, they get frustrated because "nothing is getting done!" and accuse the politicians of mudslinging.  This system is set up precisely to those ends--the ensure that no laws are passed in a superficial or covert manner.  This is why the passage of the new health care law was such an affront to our system of government.

Each branch is required to interpret the Constitution.  The Congress, when it passes laws, is doing so because they believe the law to be within their Constitutional authority.  The Executive, when he chooses to sign and/or enforce the law (especially a law effectively "passed" by the judiciary), and of course the judiciary, when it makes judgements about the merits of alleged injury caused by a particular law.

As such, the executive may demonstrate its interpretive authority in a variety of ways.  Refusal to enforce a law is a legitimate, if blunt, tool to use. 

The contention by Andrew Jones that Newt's position challenges Marbury v. Madison is inaccurate.  Newt is not challenging Justice Marshall's contention that it is the "province and duty of the judicial department to say what the law is."  He is merely contending, rightly in my opinion, that it is not the sole province of the judiciary to interpet the Constitution. 

This hyperventilating by Bush's former attorneys-general on talk shows is misplaced.  Mukasey said that this would "reduce the entire judicial system to a spectacle."  What he's saying is that it will make it more political--as if the confirmation hearings haven't done that already.

Also, the mantra of "rule of law" chanted by the left any time the American people disagree and want to do something about SCOTUS decisions that are clearly extra-constitutional is incomplete. The rule of law refers to the body of law being king (Lex ex Rex), not any man -- or group of men.

Our system has a specific and measured way to produce such law.  Newt is reacting to the acquiescence of two of the branches of government allowing one branch to position itself as the sole arbiter of law.  I welcome that long-overdue reaction.

There are, of course, political ramifications, and those are the only valid arguments being leveled, i.e. "what happens when Democrats are in power?"  This is a very real political concern, which justifies Newt's statement (reflecting the Declaration) that these tools wouldn't be used except in extreme circumstances (or after a long train of abuses).  The techniques he is talking about would set up a very real, and very contentious, political argument over the values the nation should hold.

Whatever one may say about the political wisdom of such moves has nothing to do with the legality of them, hence the frantic nature of the comments.

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