Jacob Sullum
Why is Newt Gingrich running for president? Two words: "under God."

I exaggerate only slightly. "One of the major reasons that I am running for president," the former House speaker said at this month's Value Voters Summit, "is the Ninrth Circuit Court decision in 2002 that 'one nation under God,' in the Pledge of Allegiance, was unconstitutional. That decision to me had the same effect that the Dred Scott decision extending slavery to the whole country had on Abraham Lincoln."

Let us pass over Gingrich's comparison of himself to the Great Emancipator and only briefly contemplate whether excising two words from the Pledge of Allegiance would be an injustice on the order of systematically denying people's rights because of their skin color. Gingrich's main point is that the Ninth Circuit's ruling (which was reversed long before he entered the race for the Republican nomination) illustrates the need to punish judges for making decisions he does not like. Such miscreants should be called before Congress to explain themselves, Gingrich says, and if they cannot do so satisfactorily, their courts should be abolished.

Although Gingrich's plan for confronting the judiciary is especially aggressive, it reflects familiar conservative complaints about "activist judges who tell us what is right and wrong and deny us the right to live as we see fit," as Texas Gov. Rick Perry, another Republican presidential contender, puts it in his 2010 book "Fed Up!" Critics like Gingrich and Perry recklessly disregard the importance of court-enforced constitutional limits, seeking to undermine judicial review in ways they themselves would come to regret.

Gingrich and Perry surely are right that judges can be wrong. It is difficult, for example, to reconcile the original understanding of the Constitution with the Supreme Court's decisions concerning abortion and the separation of church and state. In his book, Perry also complains about the Court's interference with the death penalty, its regulation of congressional districts and its nullification of the Texas ban on sodomy. He worries that it might one day require legal recognition of gay marriages.

All these examples involve second-guessing decisions by legislators. But that does not mean Gingrich and Perry think the courts should automatically defer to the people's elected representatives.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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