Sunday, December 18, 2011

You can be a historian, too

Professor Gingrich was at it again last week flashing his Official Historian's Membership Badge, this time to explain why President Historian Gingrich, "just like Jefferson, Jackson, Lincoln, and FDR,"  would "take on the judiciary."

Before examining the professor's historical analogies, could I point out that unlike, say, being a chemist, physician, lawyer, engineer, accountant, plumber, tree surgeon, piano tuner, or barber, being a "historian" means absolutely nothing in terms of professional qualifications or special expertise?

The leading GOP candidate keeps brandishing the title "historian" as if this uniquely qualifies him to hold forth with authority about the American political system. ("I would suggest to you actually, as a historian, I may understand this better than lawyers," he told reporters last week in reference to his pronouncement of the invalidity of two hundred years of legal precedent establishing the power of courts to consider the constitutionality of laws.)

Well, as someone who has slung history with the best of them, I can reveal a little secret: anyone who can read can be a historian. In fact, the more you read, the better a historian you can be. Which is where Professor Gingrich runs into trouble.

Gingrich, who explained that he was outraged by activist liberal elitist judges imposing their secular values on America (and more generally by "lawyers" who have come "to think that they can dictate to the rest of us"), declared that as president he would simply ignore Supreme Court decisions he didn't like, abolish Federal appeals courts whose "anti-American" judges ruled in ways he didn't like, and encourage Congress to subpoena judges to explain their decisions.

He claimed that Lincoln had similarly "just ignored" the Dred Scott decision, when he issued his Emancipation Proclamation; he said that Jefferson had similarly abolished Federal circuit courts whose judges he opposed; and he asserted that Jackson and FDR had also taken stances against what he declared to be the spurious doctrine of "judicial supremacy"—that the courts can pass judgment on the constitutionality of presidential actions or acts of Congress.

He insisted that the Supreme Court's 2008 decision on detainees at Guantanamo could be declared "null and void" by the president "because it infringes on my duties as commander in chief to protect the country."

He wrapped up his case by invoking those infallible and all-seeing guides, the Founding Fathers, who he said "were very distrustful of judges, saw them as an elite instrument of government designed to oppress people. And, as a result, consciously made the judicial branch the third branch and the weakest branch."

Gingrich's buffoonery is easy to mock (I know, I've tried); but at a certain point it becomes frightening enough that it's worth taking seriously. So forgive me for a moment if I do.

First, the good professor is wrong on almost every example he cited of presidents' ignoring court decisions.

1. In the 1857 Dred Scott case, the court ruled that a Negro slave, or descendant of a slave, could never be a citizen of the United States, and that Congress had no power to ban slavery in the territories since slaves were property whose owners could not be deprived thereof without violating the protection of property rights guaranteed by the Fifth Amendment.

Lincoln and others who opposed the expansion of slavery certainly did believe the case was wrongly decided. But as president Lincoln did not take any action to oppose the decision. In fact, Lincoln's entire career was one marked by a respect for the law bordering on reverence. The Emancipation Proclamation, far from being an instance of flouting the law, was testament to Lincoln's belief that no matter how just or right the cause he had to proceed within a constitutional framework. Indeed, the proclamation did nothing to grant rights of citizenship to slaves freed; it implicitly embraced the legalistic argument that slaves were property, as had the court in Dred Scott; and the very reason Lincoln insisted that he could only order the emancipation of slaves in areas of the country in a state of actual rebellion was based on their legal status as property and thus as contraband of war.

The proclamation did not alter by one iota the law in the states that had remained in the Union, or even in the areas of rebel states then under Union control (Lincoln even countermanded a military order by Union general John Frémont in Missouri freeing slaves there, on the grounds that it exceeded legal authority). "Can it be pretended that it is any longer a government of Constitution and laws, wherein a General, or a President, may make permament rules of property by proclamation?" Lincoln said.

It was not by a president's "simply ignoring" a Supreme Court order that the issue of the legal rights and status of African Americans was ultimately resolved: recognizing that neither the president nor Congress had the power to ignore the law, Congress did what the Founding Fathers intended in such cases and amended the Constitution. The Fourteenth Amendment, as the court later recognized, was what reversed the effect of Dred Scott and granted full citizenship to freed slaves.

And by the way, Lincoln (at least as a political point) took the Dred Scott decision and its implications seriously enough that it was the crux of his debates with Stephen Douglas in 1858 in the race for the United States Senate seat in Illinois; it was Douglas who tried to fudge the matter by suggesting that the court's finding was not really a binding legal decision, Lincoln who took the view that it was, that it would of necessity be enforced, and that its clear legal implications (eliminating the right of any state to outlaw slavery) proved his point that the nation could not ultimately survive half slave and half free.

2. On Jackson, Gingrich apparently believes the long-debunked chestnut about Jackson refusing to enforce the Supreme Court's decision in favor of the Cherokee Indians in their suit against the state of Georgia, which was seeking to dispossess the tribe of its lands. In fact, the court's complex decision in that case did not impose any duties upon the president or federal government requiring action at all. (The case involved a Georgia law that tried to prevent northern missionaries from visiting and assisting the tribe in their legal case: the court ordered a missionary who had been arrested under the law to be freed. The famous words Jackson were said to have uttered, "John Marshall has made his decision; now let him enforce it!" are actually fictitious, a later historian's paraphrase. What the president actually observed, in a private letter, was "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate." Even that proved wrong: Georgia did obey the court's order, ultimately.) Of course, even if Gingrich had the facts right the conclusion he is attempting to draw is appalling. Is he really suggesting that it would have been a good thing for a president to ignore a Supreme Court ruling defending the rights of a peaceable Indian tribe not to have its land stolen from it and to be driven to a reservation halfway across the country??

3. If by his reference to FDR, Gingrich referred to Roosevelt's misbegotten plan to add additional justices to outvote the Supreme Court majority that had overturned key New Deal legislation, boy is that a rotten example, too. The move was a political debacle for FDR, who quickly backed down. Yes, he thought the court was wrong, and was willing to challenge them. Did he "simply ignore" any of the court's decisions, or even hint he had the power as president not to obey the law? Never.

4. The Jefferson incident is a particular favorite of Gingrich's, which he constantly invokes as a precedent for his proposal to get rid of the Ninth Circuit court, which he dislikes because it is full of those elitist liberal judges who try to enforce things like the First Amendment. But it too is an odd precedent for him to try to invoke. If there is a real lesson from the battle over federal judiciary in 1801 and 1802 it was exactly the dangers of injecting partisan politics into the judiciary.

The new Federal circuit courts had been created by the lame duck Federalist-controlled Congress just three weeks before the end of its session in 1801; President Adams, just before leaving the White House, quickly filled the new positions with his political allies. It was, as historian Gordon Wood notes, a rather blatant attempt by the Federalists to keep hold of power they had lost in the presidential and congressional elections.

The new Democratic-Republican Congress promptly abolished the courts,  pure political payback. But even many Republicans grew uneasy about the assault on the independence of the judiciary after a highly partisan impeachment action was brought against a strongly Federalist justice, Samuel Chase.

This one, too, is a perfect illustration of the simplemindedness of the Gingrich method of history. You can find some precedent for almost anything. What's worth asking is whether it was a good precedent. In fact, this was the only time in U.S. history that Congress revoked the tenure of sitting Federal judges. Most historians of constitutional law would agree it was a very bad precedent—and has been recognized as such for the two hundred years since.

Gingrich's claims that the FF's were "very distrustful of judges" is another cartoonish travesty of history. The colonists were certainly distrustful of courts and saw those ermine-robed representatives of the crown as an instrument of elitist repression. But a revolution in attitudes had taken place in the 1780s, in the decade following the Declaration of Independence, and as the direct result of the incompetence, excess democracy, and feckless legislating of the state legislatures—which abrogated contracts to pay off special interests, passed and rescinded laws in rapid succession, and sowed legal chaos and confusion.

By the time of the constitutional convention, as Wood notes, "a remarkable transformation" in attitudes had taken place; the delegates had no difficulty in readily agreeing to an independent Federal judiciary that would be insulated from political influence by having guaranteed salaries and lifetime tenure.

I think we might all agree that George Washington was a founding father. Here's what he thought: that the independent administration of justice by the courts was "the strongest cement of good government."

Finally, as for judicial review: It's true that Jefferson and Madison to their dying day thought that the courts had no power to declare a law unconstitutional. It's also true that by 1790s most Americans had come to think otherwise.

There were two reasons for this. One was that judicial review was an inevitable consequence of the revolutionary idea of a written constitution. No nation before had ever reduced its fundamental laws to writing. If the Constitution was a document with actual legal meaning, as opposed to simply a vague enunciation of political ideals, then it was inescapable that courts would be faced with situations where laws enacted by legislatures or the common law conflicted with the Constitution.

Despite all the guff from the right these days about "judicial supremacy" and "activist judges," courts still have no power simply to issue pronouncements in the abstract about the validity of legislation or presidential acts; they decide actual controversies that come before them, when one party sues another. For centuries, English jurisprudence had evolved principles of necessity for judges to interpret statutes that were ambiguous, badly worded, or contradicting other statutes: that was nothing new in that at all. The only new question was whether the Constitution was a law judges had to follow in deciding cases. Most Americans would say that's a good thing that they do—otherwise the Constitution would be nothing but ceremonial window-dressing (or "a solemn mockery," as Justice Marshall put it).

The other reason for the broad acceptance of judicial review was that the courts themselves changed their behavior. Judges in the early republic had continued to exercise an often highly political role as they had previously. But the very fact that the courts were evolving into a truly independent third branch with this important function as arbiters of constitutional law made judges far more circumspect; it was their renunciation of overt political activity, their embrace of professionalism and nonpartisanship, that proved pivotal in assuaging public concern over the emerging doctrine of judicial review.

Even an originalist like Mr. Injustice Scalia has not proposed renouncing two centuries of post-Founding Fathers legal precedent and abandoning the power of courts to rule on the constitutionality of legislative and executive acts. (Though, it's worth noting that if anyone is ignoring history it is not those liberal elitist activists but the right wing on the Supreme Court today. One of the key steps the Supreme Court of the early 1800s took to legitimize its role and to emphasize the nonpartisan professionalism of the law was to steer clear of politically charged cases. In the last few weeks the Roberts court announced it would take up three politically explosive cases in an election year: redistricting in Texas, the health care law, and the Arizona immigration law. There was also that little matter of deciding the presidential election in 2000.)

Separating law from politics was a huge historical accomplishment; while needless to say it was far from perfect it made America a beacon to the world for its respect for the rule of law and its adherence to the principle that no man, the president included, is above the law.

(By the way, about this right-wing-bordering-on-fascist view that the president's role as commander-in-chief means he can do whatever he wants in the name of national security: that would really appall the Founding Fathers, who were fearful of the military's despotic potential in the hands of a powerful executive. The Constitution grants to Congress among its enumerated powers the power to set regulations for the army and navy and to decide when, how, and if military force is used. Being commander-in-chief means the military has to obey the president's legal orders: it does not mean the president gets to make up what the law is, any more than the president could be a law unto himself in executing any of his other duties.)

Notably, it was disgust with petty politics, special interests, and partisan maneuvering that helped make the professionalism of the courts and the rule of law possible.

It shows no historical understanding whatsoever to propose that what the judiciary system really needs now is a hefty dose of Mr. Gingrich's politics and partisan pandering.