Terrible ideas seem to have a way of migrating across the border from New Hampshire — we’re thinking the legalization of fireworks here — so we can expect this one to show up at some point.

Legislators in two states, New Hampshire and Tennessee, have proposed ending the authority of their respective judicial branches to judge the constitutionality of legislation.

Supreme Courts in each state have run afoul of conservative legislatures based upon their readings of law.

In New Hampshire, the Supreme Court issued an opinion that the legislature could not force the attorney general to join a lawsuit against President Barack Obama’s health care reform act.

New Hampshire has yet to join Maine and 25 other states in that suit. 

Presidential candidate Newt Gingrich fanned this fire in December when he said Congress can ignore federal court rulings it found objectionable.

Gingrich also suggested Congress should be able to subpoena federal judges and demand they appear to defend their decisions.

All of these suggestions fly in the face of three things:

First, major decisions are already accompanied by written opinions explaining the court’s decision.

Second, the authority of these courts is as firmly embedded in the U.S. Constitution as the existence of Congress itself. The founders established three independent, co-equal branches of government.

Finally, courts can lean both left and right. Witness the shift in the U.S. Supreme Court over the past decade.

Allowing Congress and legislators to ignore decisions would always favor the political mood of the country at the moment, which seems to swing from left to right with astonishing regularity.

Michael Mukasey, a conservative former federal judge and attorney general under President George W. Bush, told the New York Times in December he was stunned by Gingrich’s ideas.

“It would lead us to become a banana republic in which administrations would become regimes, and each regime would feel it perfectly appropriate to disregard decisions of courts staffed by previous regimes. That’s not who we are.”

The idea behind the U.S. Constitution, echoed in state constitutions, is that our courts are the firewall between the majority and the rights of individuals and minorities.

The reason we do not regularly elect Supreme Court justices is that they should be able to stand apart from the passions of elected leaders.

That’s the idea and the ideal. Do courts sometimes over-reach? Perhaps.

But courts can also cower, as when the U.S. Supreme Court upheld the order of a popular Democratic president to intern 150,000 Japanese Americans during World War II.

It was a frightening failure by all branches of government to protect the rights of U.S. citizens.

Asked if Gingrich’s idea made sense, Mukasey was succinct: “Not any more than you get rid of termites by burning your house down.”

Well said.

In an atmosphere of turmoil, blame and fear, an independent judiciary is more important than ever.

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The opinions expressed in this column reflect the views of the ownership and editorial board.


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