I winced when I reread a passage in my column this morning. The column revisits Newt Gingrich’s proposal to rein in the federal judiciary, and the specific bone of contention (between me and Stephen Fitschen of the National Legal Foundation) is the former Speaker’s idea of having Congress subpoena federal judges to have them come explain their wayward rulings. Contrary to Mr. Fitschen’s insistence, Newt did not offer this suggestion as a component of impeachment hearings. Instead, he anticipates “judicial accountability hearings” — the usual congressional flaying for the TV cameras. The offending passage in my column is this one:
While business executives (other than union bosses) may have to put up with this sort of theater, judges and presidents do not. The Constitution makes them the peers of Congress. Not being subordinate, they are not subject to congressional commands that they show up for such dog-and-pony shows.
Before Mark Steyn goes all Mark Steyn on me, let me confess error. Though I try hard to avoid the trap of speaking too much like a lawyer when writing for an audience of (mostly) non-lawyers, I occasionally fall down on the job when technical legal issues like the parameters of separation-of-powers are being argued. I do not mean to imply that ordinary citizens are “subordinate” to citizen legislators in a way that officials from other branches of government are not — that is, I do not mean to say that the Constitution sets up a caste system in which government officials are superior to the rest of us.
What I mean is that the people vest Congress with certain powers, including the power to compel testimony, that can be exercised against all Americans — but that are subject to limitations (i.e., privileges to refuse to testify) that have also been crafted by the people. Included in those limitations are privileges based in the concept of divided government. Separation of powers is at the heart of liberty because if the branches were not equal, the greater could devour the lesser and become a ruler instead of the people’s adjutant. In that sense, the president and the courts are not subordinate to Congress — they must accede to Congress’s authority in certain matters (e.g., spending) where the Constitution makes Congress superior, but they need not yield to Congress’s power to compel testimony. I was talking about “subordinate” versus “superior” in terms of the dynamics of power between the branches. Similar dynamics are at work between Congress and the people, too. If a person, for example, has a reasonable fear that testimony would tend to incriminate him, he, too, may refuse to testify — Congress’s desire for information is “subordinate” to his liberty interest, protected by the Fifth Amendment.
“Subordinate” was an unfortunate choice of words, and I wish I had thought of a better way to say what I was trying to say.