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December 19th, 2010

Becoming Judicial Activists Ourselves

By Nathan Tucker

Several Iowans recently filed suit in federal court, claiming that the state’s current judicial selection process is unconstitutional and requesting the court for an injunction prohibiting the state nominating commission from selecting finalists for the three pending vacancies on the Iowa Supreme Court.  Though doubtless well-intentioned, the suit asks the court to engage in the same type of judicial activism that Iowans rejected when they ousted the three Supreme Court justices.

In its complaint, the lawsuit argues that:

Invariably, one of the three nominees selected by the Commission will become a justice or judge in Iowa, so that the Commission determines the composition of the judiciary in Iowa. Despite having this significant power and function, seven of the fifteen members of the Commission are elected exclusively by the members of the bar of Iowa. This restricted election denies the citizens of Iowa the right to vote and the right to participate equally in the selection of justices and judges in Iowa.  (emphasis added)

Though similar lawsuits in Alaska and Kansas have been rejected, George Mason Law School Professor Nelson Lund argues that “there is now a large and well-settled body of case law strongly indicating that the…nominating commission should be struck down” under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

A casual review of the relevant caselaw indicates that the plaintiffs have a very strong argument…based on U.S. Supreme Court precedent.  Therein lies the problem.  As Lund himself notes, these decisions were made over vigorous dissent (unrebutted by the court majority) that they were inconsistent with the original public understanding of the 14th Amendment (ratified in 1868).

As Justice John Marshall Harlan II wrote in his dissenting opinion in Reynolds v. Sims (1964):

The failure of the Court to consider [the original public understanding] cannot be excused or explained by any concept of “developing” constitutionalism. It is meaningless to speak of constitutional “development” when both the language and history of the controlling provisions of the Constitution are wholly ignored…[T]he Court’s action now bringing [suffrage] within the purview of the Fourteenth Amendment amounts to nothing less than an exercise of the amending power by this Court.

So far as the Federal Constitution is concerned, the complaints in these cases should all have been dismissed below for failure to state a cause of action, because what has been alleged or proved shows no violation of any constitutional right.

The text of the 14th Amendment itself belies the notion that it mandates equal voting rights for everyone.  For instance, Harlan noted that, irregardless of the 14th Amendment’s guarantee of equal protection, Section 2 of that Amendment expressly allowed States the ability to deny the right of suffrage to black men, though it punished them for doing so by reducing their representation in the U.S. House.  The right of suffrage was not extended to blacks until the 15th Amendment (1870), to women until the 19th Amendment (1920), or to eighteen-to-twenty-year-olds until the 26th Amendment (1971).

In addition to the text, Justice Harlan examined the original public understanding of the Amendment and concluded that:  “The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the Amendment believed that the Equal Protection Clause limited the power of the States to [regulate suffrage] as they saw fit. Moreover, the history demonstrates that the intention to leave this power undisturbed was deliberate, and was widely believed to be essential to the adoption of the Amendment.”

For instance, John Bingham (R-OH), the author of the 14th Amendment’s equal protection guarantee, acknowledged that:  “To be sure, we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” (emphasis original)

Senator Jacob Howard (R-MI), who served on the committee which drafted the 14th Amendment, gave the following explanation of its meaning:

The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States, and does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. Is it not time, Mr. President, that we extend to the black man, I had almost called it the poor privilege of the equal protection of the law? . . .

But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting. The right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a depostism [sic].

In short, as much as we may personally want the suit challenging Iowa’s judicial selection process to prevail, such a result is not justified by the text or history of the 14th Amendment which explicitly excluded voting rights from its guarantee of equal protection.  If the Amendment specifically left States with the ability to deprive blacks the right to vote, then certainly it leaves States free to limit the right to vote for commissioners.

In our eagerness to change the commission system, we must not become activists ourselves.  The people of Iowa adopted this system, and it is long past due that the people of Iowa work to reform it.  The inequality in the selection of commissioners is certainly something the General Assembly can remedy, but courts are powerless to do so under the 14th Amendment.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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