Friday, December 16, 2011

In Fox News Debate, Newt Slams Activist Judges


Read an extended white paper on this topic mentioned in tonight's Fox News debate here.

#9 in the 21st Century Contract With America:

Restore the proper role of the judicial branch by using the clearly delineated powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.


In the last half-century, a political and activist judiciary has stepped far beyond its proper boundaries.

The time has come to reestablish a balance among the three branches of government according to the Constitution.

Article I of the Constitution covers the legislative branch, because the Founding Fathers thought it would be closest to the people and therefore the strongest branch.

Article II concerns the Executive Branch because the Founding Fathers had lived through an eight-year war with the British Empire and knew there were times when there would have to be a strong executive and a competent Commander-in-Chief implementing the law and defending the nation.

The Judicial Branch did not come until Article III because the Founders wanted it to be the weakest of the three branches.

The Federalist Papers explicitly recognized that the Judicial Branch would be weaker than the Legislative and Executive Branches. In Federalist 78, Alexander Hamilton wrote reassuringly that the Judicial Branch would lose any confrontation with the two elected branches:

“the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.”

The Founding Fathers felt strongly about limiting the power of judges because they had dealt with tyrannical and dictatorial British judges.

In fact, reforming the judiciary was second only to “no taxation without representation” in the American colonists’ complaints about the British Empire prior to the revolution. A number of the complaints in the Declaration of Independence relate to judges dictatorial and illegal behavior.

Since the New Deal of the 1930s, however, the power of the American judiciary has increased exponentially at the expense of elected representatives of the people in the other two branches. The judiciary began to act on the premise of “judicial supremacy,” where courts not only review laws, but also actively seek to modify and create new law from the bench. The result is that courts have become more politicized, intervening in areas of American life never before imaginable.

There are clear legislative and executive remedies for courts and judges that violate their oath of office, act beyond the judicial power, or otherwise act in a manner that violates the Constitution, and these remedies have been used in the past.

For example, Thomas Jefferson and the new Congress abolished over half the federal judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801 and their passage of the Judiciary Act of 1802. Congress also has the power under Article III of the Constitution to regulate the jurisdiction of the Supreme Court and other federal courts.

I look forward to having a national conversation about a bill that will establish a constitutional framework for reigning in lawless judges, reestablishing a Constitutional balance among the three branches, and bringing the Courts back under the Constitution.

Read an extended white paper on this topic here.

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