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The Independent Institute
Commentary

Gingrich Is Right about Judicial Supremacy


The press has belittled Newt Gingrich for criticizing the judicial supremacy of the Supreme Court. Commentators have labeled him “fascist” and accused him of embracing a “sinister radicalism.” Gingrich’s ideas, we are told, offend basic constitutional principles, like the separation of powers.

Who really has the final say on what the Constitution means? According to pundits on the left and right, there is only one answer: the Supreme Court of the United States. From high school civics to law school, Americans are taught that the framers of the Constitution designed the court to be the ultimate arbiter of constitutional issues. Yet, our modern advocates of judicial supremacy misconstrue the facts and promote an erroneous historical perspective.

One of the most egregious mistakes these analysts make is to ignore the impact of popular sovereignty on the United States. Prior to the American Revolution, eminent British jurist William Blackstone described Parliament as possessing “sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws.” The American revolutionaries rejected the idea that a legislature, or any other branch of government, could possess ultimate power. In June 1776, the Virginia Declaration of Rights averred, “all power is vested in, and consequently derived from, the People; that magistrates are their trustees and servants, and at all times amenable to them.”

Moving cautiously, state court judges accepted that popular sovereignty mandated a form of judicial review—the power of the courts to review decisions of other departments of government. The judiciary realized that it was a co-equal branch of government, but no judge in the early Republic ever claimed to be the final interpreter of the federal or state constitutions. To do so would have been to attack the Revolution’s establishment of popular sovereignty—something an American patriot would not dare contemplate.

But what about Chief Justice John Marshall’s 1803 decision in Marbury v. Madison? Didn’t Marshall claim to be the final word on the Constitution? If we read Chief Justice Marshall’s opinion in the context of popular sovereignty and state cases adopting judicial review, we see that Marbury did not declare the Supreme Court to be the final arbiter on the meaning of the United States Constitution. Marshall simply held that, as a co-equal branch, the Supreme Court must take note of constitutional provisions when deciding a case or controversy. He also suggested that the court must show deference to the elected branches of government.

Contemporary reaction to Marbury supports a narrow reading of the opinion. Jefferson never objected to Marshall’s claim that the court was a co-equal branch that could exercise judicial review. In his 1804 letter to Abigail Adams, Jefferson espoused his affirmation that “nothing in the Constitution has given [the judges] a right to decide for the Executive, more than the Executive to decide for them.”

Fast-forward to the presidential race of 2012 and Newt Gingrich’s rousing attacks on modern interpretations of federal jurisprudence. “The courts have become grotesquely dictatorial, far too powerful and, I think, frankly arrogant,” Gingrich declared recently from the campaign trail. As Jeff Jacoby of the Boston Globe wrote in a recent column, “Opinion polls suggest that the former House speaker’s hour has come and gone—but his critique of judicial supremacy deserves to be taken seriously no matter [the results] in Iowa or New Hampshire.”

By challenging judicial supremacy, Gingrich does not threaten the separation of powers. Like Jefferson and Marshall before him, Gingrich simply believes that all three branches of government are agents of the people and have an equal right and duty to interpret the Constitution. While not all of Gingrich’s remedies for modern judicial supremacy are equally meritorious, by bringing this issue to the fore of debate, Gingrich does the country a favor. A correct understanding of popular sovereignty is necessary to restore our government to one that upholds the fundamental principles and respects the structural framework of this nation, as our forefathers intended.


William J. Watkins, Jr. is a Research Fellow at The Independent Institute in Oakland, Calif. and author of the Independent Institute book, Reclaiming the American Revolution. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.

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