Will vs. Gingrich: the third assault

In his rage against Newt Gingrich George Will seems to have forgotten that the establishment's task this week is to attack Ron Paul as an anti-American appeasing bigot. In three philippics so far, Will has tried to demonstrate that the former Speaker is the "least conservative" of the aspirants for the Republican presidential nomination. In past columns, Will's evidence for that claim has been that Gingrich has: 1) ideas he wants to implement as policy to improve the national economy; and 2) criticized Mitt Romney for running a business that laid off people. Satisfied with that evidence, Will now amplifies his claim, condemning Gingrich as the "anti-conservative" candidate. That still may not be true, but at least this time Will has a potentially substantive case against the Georgian, though he comes late to it. One week ago, when Will was deploring Gingrich's supposed disrespect for the creative destruction that fuels capitalism, other writers were pointing to a white paper the candidate had published rejecting executive deference to the judicial branch of government. Gingrich's position is that the doctrine of judicial supremacy, according to which the Supreme Court is the final arbiter of the meaning of the Constitution and the constitutionality of laws, has encouraged an unchecked expansion of judicial power and an inevitable usurpation of legislative and executive prerogatives. He believes that the other branches have been provided with checks against the judiciary, but have been intimidated into submission since the 1950s. He does not believe that it should be necessary to draft and ratify a constitutional amendment for anyone other than the Supreme Court to reverse a Court decision.

[A] Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress. A Gingrich administration will use any appropriate executive branch powers, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.

Gingrich believes that judicial supremacy can be refuted simply by having the executive and legislature repudiate it and, more practically speaking, by reclaiming their constitutional powers to check and balance the courts. Among these, according to Alexander Hamilton (writing as "Publius" in Federalist No. 81) is Congress's power to impeach judges. Hamilton appears to give Gingrich a mandate for using impeachments as a check on judicial usurpation, or on judges making unconstitutional decisions. Presidents from Jefferson to FDR have disputed the finality of Court decisions -- and Will would certainly deem "anti-conservative" Gingrich's apparent endorsement of FDR's failed scheme to pack the Court, as well as the scheme's success in intimidating Justices into compliance with the New Deal.

It becomes clear once you read the white paper that Gingrich argues for checks against the judiciary in the name of a conservative principle, whether Will recognizes it as such or not. Gingrich works from the premise that the Constitution is not simply what the current Court majority says it is, and that there can be such a thing as an unconstitutional Supreme Court decision. While Will accuses Gingrich of practicing "majoritarianism," and desiring that legislative majorities should trump judicial majorities, he fails to acknowledge that the white paper explicitly avows originalism as the basis for Gingrich's proposals. Gingrich can claim that a Court decision is unconstitutional because he believes in an analytical method that reliably determines the constitutionality of any law. That method is originalism, a reference to and reliance on the stated intentions of the Framers -- and, presumably, the intentions of the Amenders. If a President, Representative or Senator is satisfied that a Justice has ruled against the Framers' original intent, he or she has grounds for action against the Court, from impeachment to simply ignoring a decision.

Originalism is itself a conservative principle, usually asserted in opposition to the notion of a "living constitution" that should be interpreted in light of current conditions and evolving standards. Why doesn't Will acknowledge Gingrich's position as conservative? Why does he characterize Gingrich's position as "sinister radicalism" instead? Will may simply be blinded by his distaste for the candidate's "protean" mentality and supposed egomania -- if not by vicarious loyalty to his wife's employer, Gov. Perry. Despite all Gingrich's avowals of fidelity to original intent, Will clearly doesn't trust him not to interpret the Constitution according to a momentary whim. For Will, the "central conservative virtue" is "prudence," the opposite of which is impatience. For him, a Supreme Court decision striking down a law should occasion a national time-out, during which a Constitutional amendment might be proposed and thoroughly deliberated. Anything else would be an impatient, imprudent "anti-conservative" backlash against the "least dangerous" branch of government.  Of course, Will may also dispute Gingrich's idea of original intent, as might be inferred from the columnist's sneer at the candidate's overheated reaction to a ruling against the Pledge of Allegiance. Gingrich's originalism is obnoxiously traditionalist and pietistic, but those qualities certainly don't make it "anti-conservative." A liberal might say "quite the opposite!" But Will's serial denunciation of Gingrich repeatedly illustrates how much conservatism in America is a matter of attitude rather than principle, and that may help explain why so many self-styled conservatives are so hard to deal with. If they can't even trust each other, where does that leave the rest of us?