Transcript: Thom Hartmann: The Big Picture: Important! Newt is right about the Supreme Court. 12 July '12
Well, I guess pigs can fly. I agree with Newt Gingrich. Not about politics, of course. But Newt is right about the Supreme Court.
And progressives should pay attention. Here’s what he said yesterday in Iowa.....
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.
On this, Gingrich agrees with former President Thomas Jefferson - and, frankly, most of the other founders of this country. Let’s break it down.
First, Newt’s assertion that the Congress can pass laws that limit the powers and behavior of the Supreme Court.
The Constitution, in Section Two of Article Three which establishes the Judiciary, does give Congress the power to define and limit what the Supreme Court can and cannot do.
Here’s the exact language -
The Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Yes, that’s what the Constitution says - in plain black and white.
If Congress disagrees with - for example - the Citizens United decision, or the Bush v. Gore decision - they can simply pass a law that says that the Supreme Court has overstepped its authority and that’s the end of that.
Now why, you may ask, did the Founders write it this way?.
The answer is really very simple.
They wanted the greatest power to be closest to the people - and Congress is up for election every two years. It’s the body in our representative democratic republic that is closest to the people.
That’s where they wanted most of the power, which is why it’s defined in Article One of the Constitution - the first among equals. The judiciary is article 3.
As Thomas Jefferson wrote in an 1820 letter to Mr. Jarvis, who thought Supreme Court justices should have the power to strike down laws, Jefferson wrote -
You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy... The Constitution has erected no such single tribunal... I know of no safe depository of the ultimate powers of the society, but the people themselves.
Please read the Constitution. Nowhere in it does it say that the Supreme Court can strike down laws passed by Congress and signed by the President.
And for the first fourteen years of our Republic, the Court never even considered the idea.
As Newt pointed out, Hamilton wrote in Federalist 78 - this is when Hamilton and Madison were writing the Federalist Papers to sell the constitution - he said,m he wrote -
[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever...
It proves incontestably, that 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.
You get that? It can never attack either of the two. But in 1803, a hard-right-wing Chief Justice named John Marshall ruled, in a case named Marbury versus Madison, that the Supreme Court could strike down laws as unconstitutional. President Jefferson went apoplectic. He wrote that if that decision wasn't challenged by Congress: "[T]hen indeed is our Constitution a complete felo-de-se [a suicide pact]. ... The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please."
But Marshall and the Court backed down, somewhat. For the next twenty years, Justice Marshall never again ruled a law unconstitutional. He never again said that a few unelected Judges were the Kings of America, with nobody who had the power to undo their decisions. But that's what Scalia and Thomas and Roberts and Alito want you to believe. That they can make George W. Bush President, without any appeal. They can make money into speech, that they can turn corporations into people, and the rest of us have no say in it.
And they're wrong.
It's not what the Constitution says. We don't have kings in America, and it's time to seriously debate and challenge the doctrine of Judicial Review - the claim by the Court itself that it has that power. As Thomas Jefferson wrote -
The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution... I will say, that 'against this every man should raise his voice,' and, more, should uplift his arm.
Why? Because, Jefferson said...
For judges to usurp the powers of the legislature is unconstitutional judicial tyranny... One single object... will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.
The power of We The People should be with the People and their elected officials, not 5 lawyers who have claimed the right to rule over every other branch of government.
Somebody tell Congress to wake up!
That's The Big Picture.