I’ve received a lot of feedback about the article I published on Tuesday about impeachment. A number of people have thanked me for writing the article. That list of people includes a number of current and former legislators. Others disagreed with my assessment, questioned my understanding of the Iowa Constitution, and determined that I must be a moderate RINO (Republican in name only) since I refuse to jump on the impeachment bandwagon.
For the most part, the reaction that the article has received is what I expected. I have no interest in pandering to a certain segment of the Republican Party. If that were the case, I would run towards every controversial position I could find, as it would be good for readership. My thoughts on what is needed following the Varnum v. Brien opinion have stayed consistent. Instead of searching for a “silver bullet” that does not exist, I have advocated for a marriage amendment, passing the Defense of Marriage Act without judicial review, and changing the way Iowa selects its judges.
I have opposed the Vander Plaats executive order because it’s an unnecessary step and is itself unconstitutional. Regardless of what you think about his proposal, a marriage amendment would still need to be added to our state constitution. I supported the effort to oust the three Supreme Court Justices who were up for retention in November. I did so because the retention vote is a power that is given to Iowans and can be used for any number of reasons.
Impeachment is a very serious and, at times, can be a complicated issue to wrap your arms around. As such, there were a number of things that my article on Tuesday did not include. There where also a number of questions posed to me in the comment section that I would prefer to answer in an article rather than in a chain of a 100 or so comments.
Many of the comments that were critical of my opposition to impeaching the four remaining justices had one thing in common – the argument that the court had no authority to determine the constitutionality of Iowa’s Defense of Marriage Act. There were also comments that indicated that impeachment was part of the path towards the truth. These views suggest that one of the accepted roles of our courts – judicial review – is invalid.
To back up their position, they cite Thomas Jefferson. Jefferson is the drafter of the Declaration of Independence, the nation’s third president, and one of the most influential founders of our country. Jefferson was also an outspoken critic of the U.S. Supreme Court’s decision in Marbury v. Madison, a landmark case where the court declared something unconstitutional for the first time.
In a letter to William Jarvis in1820, Jefferson wrote the following about the ruling:
To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
Jefferson is obviously an excellent person to cite for those who are adamant that the decision in the Varnum case was not within the Court’s constitutional powers. While Jefferson was one of the most influential of our founders, he’s not the only one we should read if we really want to understand the framers’ intent for the judiciary. Years before the Marbury case, Alexander Hamilton wrote about the role of the judiciary in the Federalist No. 78.
The Federalist Papers are a series of essays that advocate for the ratification of the U.S. Constitution. The collection is considered to be the primary source for interpreting the intent of the U.S. Constitution. Hamilton, James Madison, and John Jay wrote these essays under the pseudonym Publius.
In Federalist 78, Hamilton writes,
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Debating whether Jefferson or Hamilton is the correct is always spirited and fascinating. However, for the past 207 years, judicial review has been the accepted role of the courts. It is simply ignorant to claim otherwise, especially since Hamilton articulated the case for it in Federalist 78, which was published fifteen years before the Court heard the Marbury case.
What good does it do for anyone to pretend that the courts don’t have the authority to determine the constitutionality of a statute when a case is brought before them? Jefferson didn’t blow off the Court’s Marbury decision by insisting that it overstepped its bounds. Instead, he attempted to pass a constitutional amendment to limit judicial review.
Like the Marbury decision, the Iowa Supreme Court’s decision in the Varnum case is unpopular and controversial. Instead of insisting that the Court doesn’t have the authority to rule in this matter, we should instead do what Jefferson tried to do – amend our constitution to deal the these issues once and for all.
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