Some of Newt Gingrich's ideas about how to rein in courts are nutty -- hauling judges before Congress to explain their positions, for example. But his larger point deserves to be debated long after his presidential bid ends:
In a 54-page position paper , Gingrich challenges the widely held belief that the Supreme Court is the final authority on the meaning of the Constitution. Though nothing in the Constitution says so, there is now an entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment - or a later reversal by the court itself - can alter that decision.
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But judges are not divine and their opinions are not holy writ. The judiciary is intended to be a co-equal branch of government, not a paramount one. If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president - or the states or the people, for that matter - to simply bow and accept it.
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But the heart and soul of American democracy is that power derives from the consent of the governed, and that no branch of government - executive, legislative, or judicial - rules by unchallenged fiat. Gingrich is far from the first to say so.
Undoing the court's role as sole arbiter of constitutionality will be difficult, since it's been entrenched since Marbury v. Madison. And there are some tricky questions I think a lot of us haven't resolved yet. If an indpendent -- ie.e. free of political pressures -- judiciary isn't the last word on the constitutionality of government acts and edicts, who will be? Is that something we should trust Congress with? Or do we even need a last word?
One thing I do now is that we have to try to walk back the status quo to a point at which so many important things in American life are not decided by none unlected people who serve for life. But I haven't the faintest idea how to go about it.
