Last night WHO Radio host Steve Deace, IFPC communications Director Bryan English, and myself debated some of the options that conservatives are exploring in the wake of the Iowa Supreme Court’s April 3rd ruling that opened the door to gay marriages in Iowa.
The debate focused on two main areas. First, is voting for a constitutional convention a risky or prudent way to pass a marriage amendment? And second, is Bob Vander Plaats’ executive order proposal an unnecessary step in passing a marriage amendment and does it set the precedent for future governors to have too much power?
In the 1850’s the legislature was unresponsive to the will of the people in passing legislation that would allow banking in the state. Today, we find ourselves in a similar position, where our elected officials are unresponsive to the will of the people on the issue of marriage.
There is no doubt that the constitutional convention option is not the preferred way to amend the state’s constitution. Like those at the Iowa Family Policy Center, I too would prefer to pass a constitutional amendment through the legislative process. However, as in the 1850’s, we have legislative leaders who are thwarting the will of the people. We have legislators who refuse to put the will of the people above the desires and politics of their leaders. The legislative process has failed the people of Iowa. That leaves the people only one option to pass a constitutional amendment that would define marriage – a constitutional convention.
In short, if the legislature will not listen to the people of Iowa, we must go around them by using the only constitutional route provided to us.
In last night’s debate, there was some confusion regarding whether or not the constitutional convention would allow only for amendments or whether liberals could use this as an opportunity to throw the entire thing out and simply start over. Below is Article Ten, Section Three of the Iowa Constitution. I think it is important to note that Article Ten is entitled “Amending the Constitution,” not “Throwing it Out.”
At the general election to be held in the year one thousand nine hundred and seventy, and in each tenth year thereafter, and also at such times as the general assembly may, by law, provide, the question, “Shall there be a convention to revise the constitution, and propose amendment or amendments to same?” shall be decided by the electors[which means eligible voters] qualified to vote for members of the general assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a convention for such purpose, the general assembly, at its next session, shall provide by law for the election of delegates to such convention, and for submitting the results of said convention to the people, in such manner and at such time as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the general assembly, voting thereon, such amendment or amendments shall become a part of the constitution of this state. If two or more amendments shall be submitted at the same time, they shall be submitted in such a manner that electors may vote for or against each such amendment separately.
While there are no limits to the number of amendments that could be forwarded, the Iowa Constitution is very clear that the purpose of the constitutional convention is to revise or amend the document, not to toss it out. Additionally, the people of Iowa are required to approve each such change that is made to the constitution at the convention separately.
Bryan English and IFPC object to the constitutional convention option because they believe that Sen. Mike Gronstal and Speaker Pat Murphy will have a hand in determining how delegates to the convention are selected. While I understand their concerns, I don’t think the legislative option for amending the constitution is a better option at this point in time. There is no way that the legislature will vote for the constitutional amendment on marriage if Gronstal and Murphy are still in their leadership positions. That means marriage proponents will have to wait for Republican majorities before any action is taken on the marriage issue.
Unfortunately, time and patience is not on our side, and English and IFPC know this. So, while they want to pass an amendment through the legislature which will take at least four years, they also support Bob Vander Plaats’ executive order proposal which they contend would force a vote in the legislature.
Vander Plaats’ executive order purports to put a stay on gay marriages in the state while the legislature passes a law that would define marriage. On its face, it seems like a good idea. When Vander Plaats mentions his executive order, he is greeted by cheers from the conservative activists supporting his campaign. Yet, authorization for this option can’t be found anywhere in the state’s constitution.
During last night’s debate, Steve Deace pointed out that in Article IV of the constitution, which deals with the executive, reads, “The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the governor of the state of Iowa.” Deace contends that, since the governor is called the chief magistrate, it implies that he/she has some supreme judicial authority.
As I pointed out, Black’s Law Dictionary defines magistrate as, “The highest ranking official in a government, such as the king in a monarchy, the president in a republic, or the governor in a state. – also termed chief magistrate; first magistrate.” The point that I made is that the term “chief magistrate” is just another name for governor, just like the constitution refers to voters as electors. This provision simply gives the office of governor its name, nothing more.
Furthermore, nowhere in Article IV, Section eight of the constitution, which deals with the duties of the governor, is there any indication that the governor is granted such far-reaching executive powers. In fact, the historical analysis that I’ve found argues that the lack of any description of gubernatorial duties in the Iowa Constitution shows that the drafters constructed the governorship to be a relatively weak office.
The fact that two principled conservatives would advocate for such expanded executive powers is troubling. While I agree with them that a definition of marriage needs to be inserted into the constitution, failing to use the proper constitutional procedures for making these necessary changes is a mistake.
I asked Deace if he believes that President Obama has the right to put a stay on the US Supreme Court Decision that overturned a portion of the McCain-Feingold campaign finance law recently found to be unconstitutional by the nation’s highest court. He agreed that Obama has that ability. I then asked him if he would support President Obama’s right to put a stay on a Supreme Court ruling that overturned Roe v. Wade, so that the legislature could act. He told me that elections have consequences, so, in essence, he was saying yes.
I understand that people are frustrated with the options that they have to chose from here in Iowa, but the last thing that conservatives should do is overreact and expand the powers of the executive branch. All that would do is create the all-powerful executive that our founders tried so desperately to avoid.
The state’s history of the constitution clearly shows that our founders wanted a weak executive.
The 1857 constitution [the version still in use today] provided for three branches and expressly prohibited any branch from exercising a function of the other. This explicit separation of powers is a difference from the federal constitution which keeps the branches separate but does not explicitly say that they are separate. As in earlier documents, the Senate and House were again given broad powers [and] few subjects of legislation were prohibited. The 1857 document, however, did include more prohibited subjects of legislation than did the constitution of 1846.
The governor could veto legislation, but his veto was to be limited, not absolute. The 1846 document allowed an override upon the vote of two-thirds of those members of the legislature present and voting. The veto in the 1857 constitution required a two-thirds vote of the entire membership of the legislature and thus was harder to override than the veto in the 1846 constitution. The veto provision was also modified to give the governor additional time to consider his action on bills delivered to him in the three calendar days just prior to final adjournment.
From 1846 to 1857, the Executive Article was changed somewhat in form but not really in substance. The governor was declared to have the “supreme executive power”, but there is otherwise little in the document which sets out exactly the nature of his executive power.
While it would be nice to believe that we could elect a new governor who could fix the marriage problem in the state on their first day in office, the reality is that such an act is not supported by the constitution of the state of Iowa. Even if a governor is elected who would attempt an executive order, the constitutionality of that action will be decided the courts. Trading in seven tyrants on the court for an all powerful executive is something that all conservatives should soundly reject.
The only way to solve the crisis we are faced with today is to insert the definition of marriage into the state’s constitution. There are only two ways to amend our constitution – through the legislature or a vote by the people to hold a constitutional convention. Ironically, or maybe by the providence of our Creator, the constitutional convention question will be on the ballot in 2010. After this next general election, the only route that we will have to amend our constitution for the foreseeable future is through the legislature.
Passing amendments through legislature has not historically been easy. The women’s suffrage movement tried for 47 years to pass an amendment to the state’s constitution; they ultimately passed an amendment to the United States Constitution first. Even with Republican majorities, the marriage amendment failed to pass in both legislative chambers in one general assembly, let alone two.
If you really believe that the people of Iowa deserve the right to vote on the issue of marriage, you shouldn’t be so quick to dismiss the constitutional convention option.
It might be our only option.
Photo by Dave Davidson
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