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Tracking Newt Print E-mail
By Hadley Arkes   
Tuesday, 20 December 2011

I wonder if other people have my reactions:  When Newt Gingrich is on television, he always draws my interest, because he always has something sharp to say from a different angle. But Newt as president?  

The escapades leading to the end of two marriages raised grave questions of character, as he himself knows. He may still be, then, as a public figure, too compromised to lead in the cause of defending marriage while it is under attack in the courts. Ramesh Pannuru condensed the matter in an apt way when he remarked on Newt’s characteristic package:  the romance of hi-tech gadgetry, along with new nostrums from “management science,” and a smattering of History. 

But he may explode in all directions, dancing with the Left on global warming or having government investing in private industries with Fannie Mae and Freddie Mac, a scheme of private profits with taxpayers absorbing the losses. And now Newt strikes a hard position on the conservative side with a strong program for countering the courts on marriage, abortion, and national security.

    In that vein, his campaign has recently issued a White Paper, reviewing the expansion of judicial power and the precedents for countering and limiting the judges. He has managed to draw on that playbook in the recent debates in a manner, quite typical for him, bold and provocative. He picks up on the arguments that some of us have been making for many years:  that the Congress may flex its powers under the Fourteenth Amendment to protect those small “persons” finding their temporary residence in the wombs of their mothers. 

But he would attach to that Act a section to bar the courts from daring to review this law and pronounce it unconstitutional. Altogether, I’m afraid, it is the perfect Newt scheme for a project that blows itself up:  You take a legislative move that is at once plausible, with a firm ground in the Constitution – a move that takes some nerve finally to make.

But then you add to it a provision certain to fail – and to scare the public along the way. We will end up hearing more about an assault on the courts, and far less about the rightful power of Congress to act.

Newt would be well advised to take that line attributed to Andrew Jackson at the Battle of New Orleans:  “Let’s elevate them guns a little lower.” It would be a breakthrough of no small importance for Congress and the Executive simply to exercise powers long overlooked in countering the courts, and engage those powers now to protect unborn children.  

There are few things reaching as far, or as widely forgotten among lawyers and judges, as Lincoln’s understanding of the rightful limits to the reach of the courts. His concern was with the holding in the Dred Scott case:  that blacks had no standing as “citizens,” and there was constitutional right not to be dispossessed of one’s property in a slave when entering a territory of the United States. 

Lincoln’s position was that the political branches would respect the outcome of the case in regard to the two litigants in the case. But if the president and Congress did not accept the principle articulated in the case, they would not be obliged to act on that principle in the measures that came under their hands. They would be free then to act on a principle quite at odds with that of the Court.

Acting on that understanding, Lincoln’s administration quashed decisions made in the executive branch to withhold a passport from a black student and a patent from a black inventor.  Lincoln and his Congress also passed a law barring slavery in the territories of the United States – an Act that directly countered the decision in Dred Scott.

Newt’s White Paper recalls that understanding of Lincoln’s. Gingrich would apply it in countering the Equal Employment Opportunity Commission if the courts hold that this agency has the authority to interfere with the firing of “ministers” in churches. The Gingrich paper makes no connection on this point to abortion. And yet the connections are many. 

A decision had to be faced years ago as to whether research in the National Institutes of Health could be confined only to tissue drawn from fetuses in spontaneous abortions. But a committee appointed by the Reagan administration did not think it could rule out the tissue that came from elective abortions. 

And yet, if Lincoln’s view was right – and I can’t see how it could be wrong – a new administration could say that it doesn’t accept the principle articulated in Roe v. Wade; that this administration will not affirm a right to kill offspring in the womb and withdraw them from the protections of the law.

I tend to doubt that Newt will end up with the nomination for president. But I don’t think one should discount this part of his appeal:  He looks and sounds as though he is tough enough, and deft enough, to challenge Barack Obama on all of the issues that matter, including abortion. One should not make light of the passion on the conservative side to see these arguments are made.

And might the White Paper itself not stand as a telling piece of evidence:  Who else among the candidates, apart from Rick Santorum, would think it important to assemble this case so methodically and assert it?


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

A Note to Our Readers: Over the weekend, the New York Times mentioned in an article about Newt Gingrich's Catholicism: "Francis J. Beckwith, a professor of philosophy and church-state studies at Baylor University (who returned to Catholicism during a career as a prominent evangelical) recently wrote in the blog The Catholic Thing that true absolution of sins requires ‘ongoing conversion,’ which means ‘detaching oneself from those things that may provide an occasion for sin.’”  (You can read the full NYT article here or at our new site, Complete Catholicism.)  We have a high opinion of our readers, and we know that most of you were not wasting your time the past few days with our “paper of record.” For the record, The Catholic Thing is not a blog (just one more inaccuracy in the Times), but a series of carefully thought out and well written columns. We respect what good bloggers do. It’s just not what we do. We try to bring you a solid commentary every morning of the year, something that will inform your heart, mind, and spirit – and that you can read and re-read with profit. Some of our readers have complained that we ask for donations to support “a blog.” We don’t. We ask you to help us make it possible for some of the best Catholic writers in America – figures like Hadley Arkes, Fr. James Schall, Anthony Esolen, and Francis Beckwith – to take the time to produce material that even the New York Times notices. It’s just one sign of their commitment to this work that they perform these labors for quite modest compensation. But the result is magnificent: thirty columns a month, the equivalent of a whole magazine. It’s getting near Christmas and we’d like to reach our fundraising goal so that we can all turn our attention to the reason for the season. Please, make your contribution of $35, $50, $100, or more to the work of The Catholic Thing, today. – Robert Royal


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written by Peter Wolfgang, December 25, 2011
Prof. Arkes, I am curious to get your opinion of the charge leveled against Mitt Romney by Rick Santorum at the last debate (and for years now by MassResistance) that, while governor, he could have simply refused to enforce the Goodridge decision. Maggie Gallagher has written in defense of Romney on marriage and that is how I remember him too. But the MassResistance critique does seem to echo what you have always said about Lincoln and the courts. Or am I missing something?

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