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12/19/2011

Originalism in the Blogs: Ed Whelen and Matthew Franck on Newt Gingrich's Idea of Abolishing Judgeships
Michael Ramsey

At NRO, Ed Whelan and Matthew Franck on candidate Newt Gingrich’s suggestion that unrestrained judges can be dealt with by eliminating their offices:  Gingrich’s Awful Proposal to Abolish Judgeships, part 1; part 2; part 3; part 4.

Gingrich's proposal is set forth and defended in this extensive (54 pages), wide-ranging and very substantive campaign document.  Among other things, it says:

First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional. An outline of some of these constitutional steps is outlined elsewhere in this paper.

Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

A Gingrich administration will undertake each of these steps.

On the specific point at issue, the document notes:

During the administration of Thomas Jefferson, the legislative and executive branches worked together to abolish over half of all federal judgeships (18 of 35). While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances, those who care about the rule of law can be relied upon to consider whatever constitutionally permissibly tools they can find to fight federal judges and courts exceeding their powers. It is one of many possibilities to check and balance the judiciary.

Whelan and Franck are, to put it mildly, not persuaded.  Concluding thought from Matthew Franck:

If the Congress’s treatment of the 1801 circuit judges was constitutionally wrong, then Gingrich is constitutionally wrong.  But if what Congress did in 1802 was constitutionally legitimate, Gingrich is still wrong, because what was done then is not a precedent for what he is considering doing now.