Print edition: 
Regrettably, the Iowa caucus process did not rid the presidential race of a set of dangerous ideas about American democracy.
Newt Gingrich, Ron Paul, Rick Perry and Rick Santorum apparently will be hanging around the fringes of the campaign at least through this week. That means their radical – not to say crackpot – ideas about destroying the system of checks and balances will continue to consume time and energy and raise false hopes for some frustrated but ill-informed conservatives.
Their views are based on three deeply held but logically and factually unsustainable contradictions:
• That the federal courts are dominated by liberal activist judges.
• That judicial activism is a trait of liberal judges, not conservative ones.
• That supporting constitutional conservatism requires rewriting the Constitution.
Even if their claims were factual, their remedies are both impractical and unwise.
The four, in only slightly varying words, have proposed:
• Tossing out federal judges (method unspecified) they deem to be “activists” (Gingrich) and abolishing lifetime tenure for federal judges (Perry).
• Giving Congress the power to override U.S. Supreme Court decisions by a two-thirds vote (Perry) and the president the power to ignore decisions he doesn’t like (Gingrich).
• Hauling federal judges, including Supreme Court justices, before Congress to explain and defend their rulings (Gingrich).
• Stripping the federal courts of jurisdiction to hear certain kinds of cases, such as those involving gay marriage and religion (all four).
• Taking dead aim at certain federal appellate courts they feel are too liberal by cutting off funding (Santorum, Gingrich).
In short, they would destroy the federal courts’ independence and make judges subject to political and special interest pressures – just another part of the process subject to legislative whims. If they believe that Congress is best positioned to run the country unilaterally, two questions arise: Where have these guys been the past two years, and why are they running for president instead of Congress?
What’s most strange about the fulminations against “liberal activist judges” is the fact that the last time Supreme Court justices appointed by Democratic presidents held a majority on the court was 1968 – 44 years ago. From 1976 to 2008, justices appointed by Republican presidents – the notorious liberals Dwight Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan and the Bushes – held at least a 7-2 majority.
It’s little different in the 13 circuits of the U.S. Court of Appeals, where, from 1980 to 2008, Republican appointees held close to a 2-1 majority.
As for judicial activism, the two Supreme Court justices who most consistently vote to overturn the actions of state and local legislative bodies – a descriptor of activism – are Clarence Thomas and Antonin Scalia, the court’s most conservative members.
The candidates’ attack route on the Constitution’s carefully crafted balance runs through the 14 Amendment, which says that the Constitution’s rights are guaranteed to all U.S. citizens (including corporations) and cannot be abridged by state and local action. It is the glue that holds us together as a nation “indivisible, with liberty and justice for all.”
Limiting the federal courts’ authority to protect constitutional rights would degrade America from a cohesive nation to a collection of inconsistent legislative fiefdoms in which neither people nor companies could securely move and act across state lines. It would, in short, destroy the United States.
