Constitution Daily

Smart conversation from the National Constitution Center

Say What? "It's always two out of three"

December 20, 2011 by Holly Munson


Photo by Gage Skidmore via Wikimedia Commons
 Editor's Note:  For the past 200-plus years, We the People have had a lot to say about the Constitution. In each installment of “Say What?” we offer a quick quote—be it wise, quirky, or otherwise memorablefrom past or present conversation related to our favorite founding document.


“Here's the key: It's always two out of three. If the president and the Congress say the court is wrong, in the end the court would lose. If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses. The founding fathers designed the Constitution very specifically in a Montesquieu 'spirit of the laws' to have a balance of power--not to have a dictatorship by any one of the three branches.”

Who said it

Republican primary frontrunner Newt Gingrich, in an interview with Bob Schieffer on CBS News' Face the Nation.

The story

In his interview Sunday, Gingrich said he would seek to rein in "radical" federal judges by allowing Congress and the president to ignore their rulings when they choose to. A few months ago, Gingrich had also said Congress should be able to subpoena federal judges it disagrees with. Interviewer Bob Schieffer asked Gingrich, "How does the president decide what's a good law and 'I'm going to obey the Supreme Court,' or what's a bad law and 'I'm just going to ignore it?'"

Gingrich's response: "I think it depends on the severity of the case. I'm not suggesting that the Congress and the president review every decision. I'm suggesting that when there are decisions ... in which they're literally risking putting civil liberty rules in battlefields, it's utterly irrational for the Supreme Court to take on its shoulders the defense of the United States. It's a violation of the Constitution."

Many legal scholars have argued that it's Gingrich's proposal that is unconstitutional, as it would effectively strip the judicial branch of its role of judicial review. For example, former Attorney General Michael Mukasey, who served under George W. Bush, commented that "Mr. Gingrich's proposal is dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall, and would reduce the entire judicial system to a spectacle."Holly Munson works in Public Programs at the National Constitution Center.

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