A Nation of Men and Not Laws: Historicizing the Ugliness of Newt Gingrich's Plan to Arrest "Uncooperative" Judges

Newt Gingrich is an existentially ugly person. He cheats on women, who are unconscious, laying in a coma. Gingrich loves to get his mic checked, some brain, hot mouth, fellatio, kissing the bishop, from his mistresses because that is "not cheating." It is okay, Gingrich's Catholic faith has saved him from any moral condemnation or consequences for his ejaculatory improprieties. And of course, patriotism made Gingrich, he who is the "political bukkake king," share his hot love juice all over town.

He suggests that black people are lazy, and their kids ought to pick up brooms and mops to learn the value of "hard work." He rewrites history on a whim. Most recently,the Tea Party GOP front-runner is arguing that he would arrest "uncooperative" judges who do not kowtow to the Conservative, Right-wing agenda.

The Constitution cries again. For folks who wrap themselves in the holy robes of the Constitution at every opportunity, Gingrich, and his party of Tea Party GOP ghouls, certainly do rape her every chance they get.

Werner Herzog's Bear, historian, big booty mack daddy, Germanist, and expert opinionator, who is not coincidentally one of WARN's favorite guest commentators, sent this great essay along for your consideration.

Werner is on point again as he locates Gingrich's assault on federalism within its proper historical context.

Good stuff for the holidays.

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When Chauncey kindly asked me to write about Newt Gingrich’s claims that if he were elected president he would use his powers to send out federal marshals to arrest judges who disagreed with him, he thought that my expertise as a historian of modern Germany would be relevant. It is, in fact, but in a different way than many folks might suspect. The German language has a wonderful and well-known precision, and one of its best words is Rechtstaat, one that is less known on these shores than Shadenfreude or Zeitgeist, but full of similar explanatory power. Rechtstaat literally means “law state,” but more precisely, it means “a state governed by laws.” The implication, of course, is “a state governed by laws, not by people.”

Germany’s admirably successful post-1945 democracy was founded as and has remained a Rechtstaat, something Germany had not been except for the sadly aborted Weimar Republic. Germany’s tragic history under those who did not respect the rule of law, be it the Kaiser, Hitler, or the Communist party (in the case of the former East) proved the perils of a government that failed to aspire to be a Rechtstaat.

That aspiration is fundamental to a functioning democracy, something that used to be better understood in this country. In Common Sense, Thomas Paine’s (the real one, not the Glenn Beck version) call for American independence, he savagely attacked the institution of monarchy for its tendency towards tyranny. Conversely, he wrote, “In America, the law is king.” Paine wasn’t using the term Rechstaat, but that’s exactly what he was talking about. For him, monarchy tended towards tyranny because monarchs refused to accept checks on their power; they wished to transform their own personal prerogatives into de facto law, any other limits on their power be damned.

This is where Gingrich comes in. He seems to ignore the idea of the rule of law when it comes to the authority of the judiciary. Instead of it being an equal branch of government with the executive and legislative branches, he claims that those two branches can agree to ignore the decisions of the Supreme Court. In essence, he is saying that if he is president and has a Republican Congress, he will simply intimidate the courts into rubber stamping his agenda.

When he made his outrageous statements, Gingrich tried to support them by saying that the courts should not be allowed to countermand the will of the people. That sounds all well and good, until you remember that the courts have long been a bulwark against the tyranny of the majority. Many of the great legal advances in the cause of equal rights in this country have been undertaken by courts who overturned prejudicial laws with majority support. A majority of Southern states would have voted to retain segregated education and bans on mixed marriages at the time of the Brown and Loving decisions, but majority support for the disrespect of a minority’s rights is still unconstitutional and injust, no matter how many people would vote for it.

We do not have the courts to protect the rights of majorities, since their political power in a democracy keeps them safe, yet in Gingrich’s conception, the right of the majority to discriminate, oppress, and mistreat minorities ought to be untrammeled. Make no mistake, that is the real subtext of what Gingrich is saying. The founding political generation of this nation, for all their faults and hypocrisies, had a healthy vigilance of tyranny and despotism, the very things Gingrich’s statements smell like.

Yet this begs a crucial question, namely, how can Gingrich and his ilk advocate a tyrannical abrogation of the judiciary and still claim to uphold the Constitution and the historical legacy of the founders? The answer is simple: Newt and his followers treat the Constitution and the historical record in ways akin to how fundamentalist Christians interpret scripture. Most fundamentalists do not get their beliefs from scripture, rather, they pick and choose scriptural references (often out of context) to prove their preconceived beliefs. 

For example, the Gospel of Wealth crowd simply ignores the numerous calls by Jesus to eschew riches and live a life of poverty, but will read and evangelize an entire book based on the obscure Prayer of Jabez from Chronicles because it asks God for riches. The Rick Perry types just love to pray in public, even though Jesus specifically tells his disciples that only hypocrites do so. A hundred years ago the Bible thumpers called for liquor to banned, despite the fact that Jesus used his miraculous powers to transform water into wine.

In regards to the Constitution, the Tea Party crowd loves to talk about the Tenth Amendment to the Constitution, which says that powers not given to the federal government belong to the states, but have almost zero understanding of what powers the federal government does have. They are searching for something that tells them “states rights,” they have found it, and they will never see it as part of a much larger and more complicated Constitution.

The same goes for the historical record. Gingrich likes to call himself a historian, but instead he is more of a historical theologian. Historians try to understand the past on its own terms, Gingrich, like a good fundamentalist, sees history as a vast orchard to be cherry picked for isolated events to uphold his philosophy. Hence his use of Thomas Jefferson’s firing of judges over two hundred years ago as precedent for his proposal to abolish the Ninth Circuit Court.

Just like the religious fundamentalists who take passages from scripture and divorce them of their context, Gingrich does not ask how Jefferson’s decision fits with larger legal and historical precedents, or even the context in which he made his decision. Here’s the context: in the last days of his political enemy and presidential predecessor John Adams’ presidency, Adams appointed several new judges at the last minute (the so called “midnight judges.”)

 This was a pretty obvious attempt by Adams to put a Federalist stamp on the government even after he was gone, and so Jefferson was in fact responding to an act political malfeasance, not simply getting retribution on an established court, as Gingrich would like to do. Furthermore, in the aftermath of the midnight judges controversy and Jefferson’s attacks on the judiciary (he tried to have Supreme Court justice Samuel Chase impeached and removed from office) the concept of judicial review, as laid down by the great Chief Justice John Marshall in the famous Marbury v. Madison case, took hold.

 To put it more simply, the historical example Gingrich tries to use to justify his quest to remove judges actually shows how such actions were rejected over two hundred years ago, with two centuries of precedent to support the opposite of Gingrich’s opinion. If Newt were a real historian, who understood history as a process rather than a series of isolated, unrelated events, he might actually know that.

In sum, we have a situation where people like Gingrich, who proclaim their love for the Constitution, are those most likely to rip it to shreds because they revere it as holy writ that substantiates their faith, rather than a living, breathing legal document. It is time that more historians and legal experts sound the alarm, because Gingrich and his ilk would have a Rechtstaat where “the law is king” transformed into a state governed by an extremist political theology ready to destroy any legal or Constitutional checks that stand in its way.