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October 22nd, 2010

Our Enlightened Masters

By Nathan Tucker

Recently the Des Moines Register penned an editorial in which, in essence, they told Iowans that they should bend over and take it like a man rather than vote any justice off the Iowa Supreme Court.  The constant theme throughout the editorial was that Iowans should not retaliate against judges who are simply interpreting an evolving Constitution.

The Register praised the Court’s decision in Varnum v. Brien (2009) to legalize same-sex marriage because it “is consistent with the Iowa Supreme Court’s long record of recognizing equal rights of minority groups.”  The Register went on to argue that Varnum “is the only reasonable reading of the plain language of the Iowa Bill of Rights, which says, ‘All men and women are, by nature, free and equal’ and that ‘the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.’”

The Register failed to present any evidence that those who drafted and ratified those constitutional provisions in 1857 understood them to require the state to recognize homosexual marriage.  To the contrary, the Register asserted that “equal rights guaranteed by the constitution cannot be restricted by contemporary social convention.”

In other words, they view that Constitution as a living, evolving document that is not bound by its original public understanding but must be interpreted anew by the Supreme Court.  Going a step further, the Register praised the Iowa Supreme Court for its history of often being “decades ahead of the U.S. Supreme Court” and the “norms of their time” in recognizing new constitutional rights.

Their view of the role of a judge, therefore, is not simply to reinterpret the Constitution in order to bring it up to current societal standards, but to actually lead the way by going beyond “contemporary social convention” to protect yet undiscovered minority groups.  The progressive, elitist judge is threatened, according to the Register, by retention votes that would “transform the judicial process into a popular political forum.”

The Court itself in Varnum embraced this progressive role of judging, writing that a statute must be declared unconstitutional “even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”  The Court continued that “citizens’ rights are [not] constrained to those previously recognized.”

Elaborating on its self-assigned role as social shepherds, the Court argued, “Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenged a deeply ingrained practice of law viewed to be impervious to the passage of time.”

Quoting the U.S. Supreme Court decision in Lawrence v. Texas (2003) which found a federal constitutional right to sodomy, the Iowa Supreme Court wrote that “’times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress’ and as our constitution ‘endures, persons in every generation can invoke its principles in their own search for greater freedom’ and equality.”

In turning to the definition of equal protection, the Court argued that “equal protection can only be defined by the standards of each generation.”  Quoting liberal law professor Cass Sunstein, they wrote that the “’Equal Protection Clause looks forward, serving to invalidate practices that were widespread at the time of its ratification and that were expected to endure.’”

Continuing, they maintain that a “classification persists until a new understanding of equal protection is achieved.  The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”

The justices of the Iowa Supreme Court no longer feel bound to interpret the Constitution as it was originally publicly understood.  Rather, they see it as their job to impose their own political, moral, and social ideals on Iowans as they lead us toward a higher plane of enlightenment.  They believe it is their responsibility to guide us past our fear, guns, and religion to the better angels of our nature.

And they, like the Register, are shocked and dismayed that the public isn’t taking it like a man when they embark on this type of adventurism outside the originalism mainstream.  The campaign to oust the judges is not only a threat to their job security, but to their entire worldview of societal improvement via judicial fiat.

This isn’t a fight over judicial independence or the influx of money in judicial elections.  Rather, this is a fight over the proper role of judges in interpreting the fundamental will of the people as expressed in a written Constitution.  It is time for the people of Iowa to refuse to bend over but rather stand up and tell the judges that they will lose their jobs if they stray from the Constitution.    This is certainly an intimidation campaign, but an entirely justified and proper one.

But while it is our right and responsibility to remove judges who pretend to be our enlightened masters, Iowans must remember that the retention vote is only the first battle in the war against judicial activism.  Real and permanent change can only come about when the judicial branch is changed through amending the state constitution.

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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 [email protected]

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