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01/02/2012

Richard Epstein on Gingrich
Michael Ramsey

Richard Epstein at Ricochet, with a blistering attack on Newt Gingrich: Newt Gingrich as Don Quixote (worth reading just for the insults).  And a follow-up: Dial Down the Anger on Judicial Activism.  From the latter:

In reading Gingrich in his 21st Century Contract with America, he is often hopelessly confused about the meaning of the term judicial activism.  Thus he instances Kelo v. City of New London as a case of judicial activism when it is the high point of judicial quietism.  Gingrich talks about how it is that the Court should yield to the Congress and the states, which is of course exactly what they did.  His real beef in the case was that the Court disregarded what he thought was the plain meaning of the words “public use” to let the states go too far.  They could of course rein in their conduct at any time, and since Kelo some states have done that, either by legislation or by practice.  But to be upset with this decision highlights the devotion that Gingrich has towards judicial supremacy.  He wants the Court to protect Ms. Kelo, as do I.

The same point  applies to the [health care reform legislation]. ...  [A]gain this is not a case in which there is a yearning for judicial passivity.  It is an insistence that a Congress of limited and enumerated powers not extend its jurisdiction by hook or by crook to cover whatever it wants.  Indeed in a federal system, I cannot see how it could function without the strong sense of judicial review. 

Gingrich has, I think, put a spotlight on a serious dilemma in conservative political thought about the judiciary.  On one hand conservatives are appalled by judicial interventions in democratic decisionmaking; on the other, they want courts to intervene when appropriate.  My sense is that both sentiments are genuine – that is, this is not hypocrisy, but rather a conflict between competing core priorities.  The Gingrich episode illustrates that conservatives need to confront the conflict directly and come up with an adequate reconciliation, to avoid the missteps that Epstein (and George Will in this column linked earlier) identify in Gingrich's approach.

My view is that originalism offers an avenue for reconciliation.  It has some prospect for checking judicial excesses while allowing judges to intervene to protect (some) core rights and structural arrangements that conservatives tend to favor.  Of course, many conservatives on the surface embrace originalism, as Gingrich himself does in his campaign document.  But taking originalism seriously requires conservatives to (as Professor Epstein says) "dial down the anger on judicial activism," since originalism itself envisions checks on democratic majorities, and it requires conservatives to accept some politically liberal results (since originalism is hardly one-sided on today's political controversies).