Political relativism: the rule of law is in the eye of the beholder

The rule of law is in the eye of the beholder

by digby

I think people have forgotten the tenor of the political dialog that surrounded the impeachment of President Clinton and the subsequent election in 2000. A certain kind of loose “coup” talk was commonplace — the pundits all speculated about such things every day for hours on television. That Newtie is still speaking in those terms should come as no surprise. It’s a defining feature of the modern Republican party’s radicalism:

SCHIEFFER: One of the things you say is that if you don’t like what a court has done, that Congress should subpoena the judge and bring him before Congress and hold a Congressional hearing… how would you enforce that? Would you send the Capitol Police down to arrest him?

GINGRICH: Sure. If you had to. Or you’d instruct the Justice Department to send a U.S. Marshal.

This question came about because Gingrich said yesterday that he would ignore Supreme Court rulings he didn’t agree with:

“I’m fed up with elitist judges” who seek to impose their “radically un-American” views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of “judicial supremacy” and restrain judges to a more limited role in American government. “The courts have become grotesquely dictatorial and far too powerful,” he said in Thursday’s Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

Relying on those precedents, Gingrich said that if he were in the White House, he would not feel compelled to always follow the Supreme Court’s decisions on constitutional questions. As an example, he cited the court’s 5-4 decision in 2008 that prisoners held by the U.S. at Guantanamo Bay, Cuba, had a right to challenge their detention before a judge.

“That was clearly an overreach by the court,” Gingrich said Saturday. The president as commander in chief has the power to control prisoners during wartime, making the court’s decision “null and void,” he said.

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in “extraordinary” situations.

On his website, Gingrich spelled out his views on courts.

“While abolishing judgeships and lower federal courts is a blunt tool and one whose use is warranted only in the most extreme of circumstances … it is one of many possibilities to check and balance the judiciary,” he wrote. “Other constitutional options, including impeachment, are better suited” to check wayward judges.

“In very rare circumstances, the executive branch might choose to ignore a court decision,” he wrote.

Gingrich also said that as president he might ignore a Supreme Court ruling if it held gays and lesbians had the right to marry.

“The Constitution of the United States has absolutely nothing to say about a constitutional right to same-sex marriage. Were the federal courts to recognize such a right, it would be completely without constitutional basis,” he wrote

If you’re expecting philosophical consistency from this person, you’ll be disappointed. After all, he also said this a few months ago:

Fox News contributor Newt Gingrich discussed how President Obama “is breaking his word to the American people” over the Defense of Marriage Act, and stated:

“He swore an oath on the Bible to become president that he would uphold the Constitution and enforce the laws of the United States. He’s not a one-person Supreme Court. The idea that we now have the rule of Obama instead of the rule of law should frighten everybody.

Imagine that Governor [Sarah] Palin had become president. Imagine that she had announced that Roe versus Wade in her judgment was unconstitutional and therefore the United States government would no longer protect anyone’s right to have an abortion because she personally had decided it should be changed. The news media would have gone crazy. The New York Times would have demanded her impeachment. The fact that the left likes the policy is allowing them to ignore the fact that this is a very unconstitutional act.”

When the host asked, “Is what he’s doing impeachable in your view?” Gingrich replied: “I think that’s something you get to much later. But I think clearly it is a dereliction of duty, clearly it is a violation of his constitutional oath, and clearly it is something which cannot be allowed to stand.

When the host pressed further, “At what point would the House or would you recommend the House consider articles of impeachment for that?” Gingrich replied:

“I think first you’d ought — you have to communicate. Look, I don’t think these guys set out to cause a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. I think that they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional. This is an impossible precedent.”

Sadly, this position isn’t really that odd, is it? Are we surprised that Republicans believe that one of their own should be able to ignore laws or constitutional principles he doesn’t like but a Democratic president shouldn’t? They trust their guy to do the right thing, so the principle is only important when it’s applied to the other side.

The GOP has been going this way for some time, Bush vs Gore probably illustrating the phenomenon better than anything. But Democrats have, in recent times, joined them in their “political relativism.” Perhaps that’s the inevitable result of living in a post-modern world, but for those just trying to keep some grasp on the concept of basic reality, it’s enervating and depressing.

The world will still spin even if the rule of law is a joke and the nation is run purely on the basis of blind and hypocritical tribalism. But I think it’s far more likely that it will to turn to superstition. What a choice.