The ironic thing about the Newt Gingrich presidential campaign is that he catapulted to the top of the field thanks to crazy talk and fear mongering.

And he is now plummeting in the polls for saying the one rational thing he's said so far during the whole campaign.

In last week's Republican debate - Newt went after the Judiciary - saying this:

Just like Jefferson, Jackson, Lincoln and FDR, I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.

I agree!

He's talking about the Supreme Court. No, really, Newt's right.

We need a president to take on the Supreme Court that has grown way too powerful.

Here we have on the Supreme Court - nine unelected officials - who serve for life - and have the sole power to strike down or create new laws in America.

That power does not exist in the constitution. They took that power way back in 1803 - in the case of Marbury versus Madison - when Chief Justice John Marshall claimed the right of Judicial Review - which allows the high court to strike down laws passed by Congress and signed by the President.

In other words - give the Supreme Court supremacy over the other two co-equal branches of government: the legislative and the executive.

The idea of an all-powerful Judiciary is also in direct contrast to how Alexander Hamilton imagined the Judiciary when he wrote in the Federalist Papers #78:

[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever....It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.

Yet - the judiciary has done exactly that.

The Judiciary has gone beyond its Constitutional power every single time it struck down a law passed by Congress and signed by the President and - most importantly - every single time it created out of whole cloth new legal doctrines like "Separate but Equal" in Plessy versus Ferguson, or "Corporations are people" with Citizens United.

And yet - oddly - no politician is talking about this direct threat to our government of an all-powerful judiciary...no one except Newt that is:

Are judges above the rest of the constitution? Or are judges one of the three co-equal branches? ...



I knew I was launching a topic that no other presidential candidate in modern times has launched. And I knew it had to be intellectually defensible.

Thomas Jefferson even agrees with Newt.

Horrified by the Judiciary's power grab - Jefferson wrote in an 1820 letter to Mr. Jarvis, who thought Supreme Court justices should have the power to strike down laws:

You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy....The Constitution has erected no such single tribunal... I know of no safe depository of the ultimate powers of the society, but the people themselves.

So the question is: what do we do about a too powerful judiciary?

Well - Newt proposes something radical - arresting judges:

Bob Schieffer: One of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.br>

I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?



Newt Gingrich: If you had to.



Bob Schieffer: You would?



Newt Gingrich: Or you instruct the Justice Department to send the U.S. Marshal.

Here - Newt goes a little over the top.

His premise is still right - but we don't need to be sending U.S. Marshalls after federal judges.

Why? Because as Alexander Hamilton pointed out we can just ignore them.

Just as President Andrew Jackson did in 1832 when he disagreed with John Marshall's decision on the Supreme Court that the state of Georgia couldn't seize Indian lands.

Jackson just ignored the court - saying - perhaps apocryphally:

John Marshall has made his decision, now let him enforce it.

The point is - the Supreme Court can't enforce any of it's decisions.

The Executive Branch controls the military and the police - not the Judiciary - so if the President just decided to ignore the high court - there's not a damn thing the judges could do about it.

Not only that - according to Article 3, Section 2 of the Constitution - the Legislative branch has the power to regulate the Supreme Court.

It reads:

[T]he Supreme Court shall have appelate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make.

Period, end of sentence.

Nowhere in the Constitution can you find the power given to the Supreme Court to strike down laws, or to create out of whole cloth bizarre legislative doctrines like the idea of corporate personhood.

Nowhere.

And not only that, the Supreme Court has to operate "under such regulations as Congress shall make."

At least, according to the Constitution.

So the point is - Newt Gingrich's campaign will likely flame out - in fact - it already is flaming out.

But let's not let his message about a too-powerful judiciary flame out as well - because the 9 kings on the high court - many of whom have ties to the Federalist Society and are in the pockets of corporate power - are the biggest threat to our democracy today.

The last president who tried to use Article 3, Section 2 of the Constitution, which gives Congress the explicit power to regulate the Supreme Court, was Franklin D. Roosevelt.

He failed, probably because he gave up before he'd fully engaged the fight, and because the war in Europe was becoming a major distraction.

But it's time to revisit the concepts of Judicial Review and Judicial Supremacy, as Stanford Law School's Dean, Larry Kramer, notes in his book, "The People Themselves" - and it's time to reconfigure our government back to the way Jefferson intended it: with the people being the only safe depository of the ultimate powers of our society.

And no matter how imperfect the messenger may be - and in this case, Newt is a pretty damn imperfect messenger - it's time for Americans to have a serious discussion about the Supreme Court and the very, very aberrant behavior they've been exhibiting since 2000 when they gave the presidency to George W. Bush, and 2010 when they unleashed invisible money on our political processes.

Check out move to amend dot org for a good starting point.

That's The Big Picture.