My, Dave Carter is a courageous one! Charging into a debate with Richard Epstein, one of the smartest men in the world, is usually a recipe for smackdown on the thermonuclear level, particularly on matters judicial. I am not so bold as to follow Dave in this charge of the light brigade, but I do have something else to offer which is relevant to the discussion: an interview I recently conducted with Princeton's Robert George, one of the most prominent legal and cultural scholars on the right, concerning exactly this topic.
The interview is featured in the latest edition of The City (you can subscribe to it here), and came in the aftermath of the Palmetto Freedom Forum in South Carolina, where Newt Gingrich, Mitt Romney, and others answered a question from George about their attitude toward confronting the judiciary. A transcript of our discussion is below, but first, here's video of Gingrich's answer - and here's a link, for the sake of comparison, to Mitt Romney's answer.
Here's how George framed his question to me in the interview:
The question I decided to ask goes to the substantive moral-political question of what are our obligations in justice are to protect human life in all stages and conditions. Obviously this is a major issue and has been since Roe v. Wade for the Republican Party and for our country.
But it also goes to the question of the respective roles of the national government and the states under the 14th Amendment. Far too often, people think of that Amendment, and indeed almost all constitutional provisions, as principles that are meant to be exclusively enforced by the courts. The 14th Amendment is a very important provision of our Constitution, one of the three amendments ratified in the wake of the Civil War. If we look at that Amendment, there is no mention of the courts and we’re not even left to guess about who is supposed to enforce its guarantees: Section 5 of the 14th Amendment explicitly delegates a power to the Congress to enforce the guarantees of the Equal Protection and Due Process that are contained in the amendment’s first Section.
Well, I wanted to know how each candidate viewed the authority and responsibilities of Congress under the 14th Amendment. That would tell me something important about the depth of each candi-date’s understanding of the constitutional division of powers be-tween the states and the national government and between the elected branches of government and the courts.
The political culture is one in which many people have been miseducated into believing in the doctrine of judicial supremacy. Contrary to what many people suppose, this was not a doctrine embraced by the framers and ratifiers of our Constitution. It was explicitly rejected by Jefferson and by Lincoln. And so in a debate about America’s founding principles, which is what the Palmetto Freedom Forum was all about, what could be more appropriate than to ask the candidates whether they would simply accept or would challenge the doctrine of judicial supremacy? With some of the candidates it led me into a conversation about Lincoln’s posture with respect to the Dred Scott decision (protecting the practice of slavery), which is an almost exactly parallel case to Roe v. Wade.
So, the fault is not only with the political class. The fault is with the larger political and legal culture that has embraced quite uncritically, the doctrine of judicial supremacy. Now, this generated some criticism of me, as you know, from conservatives. But I think the conservatives who made those criticisms themselves have quite uncritically bought into a mistaken understanding of the Constitution’s division of powers between the legislative and judicial branches of government...
Law schools these days educate students into believing that a doctrine announced by the Court in 1958, and which to this day is rejected by several justices on the Court, somehow has the status of the position of the Founding Fathers or the ratifiers of the Constitu-tion. It’s high time that the doctrine was very publicly challenged. I was delighted to have the opportunity to do that.
In reaction to Romney's answer:
Now, I understand the Governor’s position. It is, as I say, a nuanced position. It accepts the idea that the President and Congress have the authority to challenge the Court. It does not embrace judicial supremacy, but it says that whenever a President or the Congress challenges the Court they create a constitutional crisis. They should only do that when there’s not another way to deal with the problem. That is scarcely an unreasonable position.
On the other hand, if I would have been able to pursue the argument I would have said well, Governor Romney, Republican presidents have been promising us constitutionalist judges who would overturn Roe v. Wade since 1976, the first election after Roe v. Wade in 1973. We have, it is true, gotten some very worthy justices—Antonin Scalia, Clarence Thomas, Sam Alito, and Chief Justice John Roberts. However, those Republican Presidents, including some of those we most admire, some of those most deeply committed to the pro-life cause (such as Ronald Reagan), have given us the likes of Sandra Day O’Connor, Anthony Kennedy, and David Souter—justices who protected Roe and prevented it from being reversed...
I think we got a very clear sense of the candidates’ convictions. We also learned something about their temperaments when it came to engaging deep moral and constitutional questions—moral questions like abortion, constitutional questions like the respective powers of the states and the National Government, and the proper role of the courts in the constitutional system.
Consider Governor Romney and Speaker Gingrich. They are very impressive men and both did very well at the Palmetto Forum. But there were clear differences of substance and temperament.
Gingrich was straightforward. In his view, the courts have consistently usurped the authority of the legislative branch of government. Judges have set themselves up as “super legislators,” in defiance of their proper constitutional role. They’ve got to be brought into line and that’s going to require decisive action including refusal of the elected branches at the national level, to accept the worst of their abuses, such as Roe v. Wade. And so Gingrich, in effect, said: “I would treat Roe just as Lincoln treated Dred Scott. I would not treat its holding or principles as binding beyond the parties to the case.” In fact, Gingrich went on to outline other steps he as President would take to bring out of control judges back under control.
So this was a bold approach, a clear, straightforward rejection of judicial supremacy and an equally clear and straightforward statement of the obligation of the President to fight it directly. Compare and contrast that with Governor Romney’s nuanced position. (And by “nuance” here I don’t again mean to be commending or criticizing it. I’m just describing it. As I have said, I think both Romney and Gingrich did well.)
Governor Romney is saying well, "okay, we’ve got a problem here. A decision like Roe is outrageous. It’s an unconstitutional decision. The Court has exceeded its powers. It has interfered in the legislative process. It’s a bad thing. To directly defy it, however, would bring on a constitutional crisis. We should do that only if there’s no other way to deal with the problem. But there is another way: As President I would be so careful in my judicial appointments that we wouldn’t get more Souters, O’Connors, and Kennedys. We’d get more justices like Scalia and Thomas. And we’d actually get rid of Roe that way without generating the constitutional crisis that direct defiance would generate."
If Gingrich is by temperament bold, one would describe Romney as by temperament more cautious. This is not to suggest that Gingrich is rash or Romney is indecisive. But it is to notice a difference in temperament—a difference that was brought very clearly into view at the Palmetto Forum."
The full interview begins at Page 19 here. He goes into more detail on his reactions to the various candidates, including Ron Paul's interesting position on the matter. I hope you'll find it worth a read.