Newt Gingrich: ‘A dangerous despotism’
“Ambition must be made to counteract ambition. … It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But … if men were angels, no government would be necessary.”— James Madison
The Founders understood the fallen nature of man very well and crafted a system designed to prevent any one branch of government from subordinating the other two. Today’s system of judicial supremacy, in which the court has the final word on the Constitution’s meaning, is directly opposed to Madison’s vision in Federalist 51.
Rather than having ambition counteract ambition, a system of judicial supremacy assumes that judges are angels while allowing their ambitions for power to roam free. This explains why Thomas Jefferson once said that such a system would produce “the despotism of an oligarchy.”
It is a dangerous despotism indeed. The same court that gave us Brown v. Board of Education also gave us the right to slavery in Dred Scottv. Sandford, the internment of the Japanese in Korematsu v. United States, and the deaths of 50 million unborn citizens in Roe v. Wade. It is the same court that flouted its own precedents and common sense to give terrorists the right of habeas corpus in Boumediene v. Bush, a 2008 decision that Justice Antonin Scalia said “will almost certainly cause more Americans to be killed.”
The Dred Scott example shows us how the danger of unchecked judicial power can be counterbalanced. Abraham Lincoln understood the constitutional system the Founders put in place and the dangers of the “despotism of an oligarchy.” He refused to obey the court’s ruling in Dred Scott, thereby restoring balance to the separation of powers and safeguarding the liberty of free black citizens.
Today’s editorial assumes that it is the judiciary that is the ultimate safeguard of our liberties. I disagree. With Madison, Jefferson and Lincoln, and millions of Americans today, I know that the ultimate guardian of the people’s liberties must be the people themselves.