Newt has brought up an issue inviting the expected attacks from the left, but surprisingly these attacks have been supported by several prominent conservatives. Newt has given voice to the idea that the legislative branch of government should fight back against activist judges. Whether his recommended procedures to do this are the right ones might be questioned, but the idea of fighting is refreshing and much needed if we are to reset the direction of this ship of state.
Michael Mukasey and Alberto Gonzales, each a former Republican Attorney General of the United States, and former Judge Andrew Napolitano, a strict constitutionalist and contributor to Fox News, have called Newts ideas unprecedented, crazy, radical, and warned that his plan would violate the separation of powers in the government. They couldn't be more wrong. First they should read some history. There is nothing new about complaints of overreach and attempts to remedy it by other branches of government. In recent decades the separation of powers have been breached in a broad organized way by the very judges these men want to protect, and Newt's ideas would only help reestablish proper boundaries.
The legislative, executive and judicial branches are theoretically coequal branches of government. Although equality in the real world is an impossibility (Jefferson thought the judicial branch would be the weakest of the three) it is important that to the extent possible, they be kept separate branches of government. The legislative branch creates and passes laws, the executive branch executes them, and the judicial branch mediates disputes and insures that the laws passed and the methods of executing them do not run afoul of the constitution.
That last part, the job of the judiciary, is the key to understanding this. Starting with Woodrow Wilson, and expanded by Franklin Roosevelt (both repeatedly expressed disdain for the constitution because it got in the way of their "enlightened" agenda), a theory developed reasoning that since the framers of the constitution could never have anticipated changes that have occurred in today's society, it is the duty of judges to interpret the constitution in a manner different than the original intent, and more in a manner consistent with modernity. At first blush this seems reasonable. But on closer examination its fails any test of reasonableness. I would argue that this very idea, this philosophy, is a violation of the constitution itself, and therefore disqualifies anyone adopting it from holding judicial office.
The fallacy in the living constitution theory is that although society has changed in ways the framers could never have anticipated, it is irrelevant. The inherent assumption that the framers were thinking about society is incorrect. They were dealing with human nature, and as much as society has changed, I would argue human nature has not, not in 200 years, not in 2000 years.
Think about the effect of a living constitution as liberals advocate. Without fixed laws and fixed principles a court could interpret anything in any way. No one would know in advance whether what he was doing was lawful or not. There is always going to be problems with cases that fall on the line of a law or legal principle, ones that can be reasonably argued from both sides. These things are uncomfortable, but they occur. We can only deal with them in as fair a way as possible.
But under the banner of a living constitution, there are no limits to what a judge might rule. See Roe vs Wade for details. No matter what you beliefs on abortion are, the legal reasoning, and I use reasoning advisedly, is totally arbitrary and irrational. The majority ruled the federal government had the right to make a judgment on an issue not enumerated among the powers of the federal government. The court then used a non existent right to privacy (arguably implied in the constitution but not stated), and contorted that into a woman's right to abort a fetus. Even legal scholars who are pro choice admit this was an incoherent ruling.
When rulings like that are made, what has happened? The judiciary has usurped the responsibility and power of the legislature. State legislatures have the right to decide whether abortion is legal (most people agree the state has a legitimate interest in murder, so the abortion debate revolves around if abortion is murder.) A judge has no such right, and to the extent he believes he does (as it appears most living constitution advocates do), then he is acting beyond his charge. The other branches should fight back. If the president declared that taxes would go up by 20%, something only congress has the authority to do, shouldn't congress fight him with everything they have? If a president were permitted to do this we would have a dictatorship. Allowing judges to interpret the constitution without regard to intent is equally dangerous, except this results in an oligarchy instead of a dictatorship.
Our success as a nation, our very freedom, is because we are a nation of laws, not men. The framers of the constitution realized their work might contain mistakes. Democracy was a new, noble experiment. Men ruled democratically might not behave in the way they anticipated. So they provided for changes, or amendments. If living constitution supporters thinks change is needed, they are free to try to bring enough people into agreement with them, and if they succeed, then, and only then, can they change the constitution. Letting a judge wander away from the original intent into wherever his ideology might lead him, making wholesale, random changes, is illegal and should be challenged and struck down by any and all supporters of the rule of law, whatever else their ideology.