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View Full Version : Newt Gingrich correct on subpoenaing judges to appear before Congress.




johnwk
12-16-2011, 02:10 PM
During Thursday evening’s debate Gingrich had good cause to suggest eliminating the San Francisco-based 9th U.S. Circuit Court of Appeals and subpoenaing judges to appear before Congress. Gingrich said “The courts have become grotesquely dictatorial, far too powerful and I think frankly arrogant in their misreading of the American people”.


Actually, “misreading” the American people is irrelevant when a court is deciding the constitutionality of a law. What is important is many of our judges and Justices have been “misreading” our Constitution‘s legislative intent, and intentionally pretending it means whatever their personal whims and fancies dictate the Constitution ought to mean. The advantage of subpoenaing judges to appear before Congress cannot be justified to rehash a decision of a court or its judges. But it can be justified to establish whether or not a decision has followed the fundamental rules of constitutional law, especially the primary rule which is stated as follows:


“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”--- numerous citations omitted, Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19, Par. 92. Intent of framers and adopters as controlling


Let us put this into a workable perspective using the infamous Kelo decision which hinged upon the meaning of “public use“ as the phrase appears in our Constitution.


NOTE: Under the rules of constitutional construction
16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally


”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ (my emphasis) The Court is not free to make the words or phrases in our Constitution mean whatever they so desire, but are confined to their original understanding as understood by our founding fathers.


As many of you may recall in Kelo v. City of New London 545 U.S. 469 (2005), our Supreme Court upheld the use of eminent domain by city officials to take and transfer privately owned property from its owner to a developer for a profit making business venture. But the argument made against the city was that such taking violated that part of the federal Constitution’s Fifth Amendment restricting a taking to property intended for a “public use”. The question arising was whether or not “public use” as found in our federal Constitution encompassed a taking to advance a “public benefit” .


In the Kelo decision the Court was bound to apply the meaning of “public use” as the words were understood during the time period the Constitution was framed and ratified. The majority opinion in Kelo is most instructive in that it documents the truth of Gingrich’s charge, that “The courts have become grotesquely dictatorial“ and are in fact making the Constitution mean whatever they wish it to mean!


Justice Stevens in delivering the opinion in Kelo writes:


” while many state courts in the mid-19th century endorsed "use by the public" as the proper definition of public use, that narrow view steadily eroded over time. Not only was the "use by the public" test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose.”


But the irrefutable fact is, the people did not erode the meaning of “public use” via an appropriate constitutional amendment, the only lawful way to change the meaning of words in a Constitution. The Court took it upon itself to do for the people what they did not willingly and knowingly do for themselves within the framework of our constitutional system, and, the Court brazenly appealed to the “evolving needs of society” to justify what amounted to be judicial tyranny and the Court imposing its will upon the people!


On the other hand, Justice Thomas, in his dissenting opinion, observes the most fundamental rule of constitutional law and carefully documents the meaning of the phrase “public use” as it was understood during the time the Constitution was adopted. He then concludes :


”The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meaning. For the reasons I have given, and for the reasons given in Justice O'Connor's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court.”


And so, if Mr. Gingrich’s desire to subpoenaing judges to appear before Congress is limited to comparing a written decision of the court to the documented intentions and beliefs under which our Constitution was adopted, and thus insuring that the most fundamental rules of constitutional law were adhered to by the Court when rendering a particular decision, then Mr. Gingrich’s motive would be in total harmony with the most fundamental rule of constitutional law which Jefferson summarized as follows:


"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.


My only question to Gingrich at this time would be, if his motive is really to defend the legislative intent of our written Constitution, why then did he co-sponsor the Fairness in Broadcasting Act of 1987, which would have allowed folks in government to regulate and abridge freedom of political speech on talk radio shows?


JWK



Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.