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October 24th, 2010

The Meaning of the Word “Is

By Nathan Tucker

Bill Clinton infamously responded to a question during his deposition by saying that, “It depends on what the meaning of the word ‘is’ is.”  Words have different meanings depending on context, and the role of the judge is to determine the meaning of the language used in a statute, regulation, prior court decision, or constitutional provision and apply that meaning to a particular case.

This job is particularly important when a judge is determining the meaning of the Constitution because it is the embodiment of the fundamental will of the people.  If we apply our own meaning to that document, rather than that of those who drafted and ratified it, then we have changed what they said.  But the Constitution is the supreme law of the land, and neither its text nor its meaning can be changed by any other means than the laborious amendment process.

It is imperative, therefore, that the Constitution be read by judges according to the original public understanding of its words and phrases.  To apply any other meaning would be to substitute the judges’ will in place of the supreme and fundamental will of the people who ratified that document.

This simple, common sense approach is used by courts in interpreting legislative statutes, wills, divorce decrees, or administrative regulations.  For instance, there has yet to be a lower court who, in applying a decision of a higher court, has disregarded what that higher court meant in favor of a new, evolving standard.

Yet, when it comes to the Constitution, courts routinely claim the power to interpret it according to evolving societal standards.  The reason for this is simple—due to the unwillingness of the majority of the people to act legislatively, the judges’ desired result will only become a reality when the courts act as social shepherds.

This is precisely what the Iowa Supreme Court did in Varnum v. Brien (2009) when it legalized same-sex marriage.  Far from simply “doing their job,” they were substituting their own will in place of that of those who ratified our state constitution.  Never once did the Court attempt to produce any evidence that those who gave us our current Constitution in 1857 understood its equal protection guaranty to mandate same-sex marriage.

Some have argued that the Constitution was written in broad language precisely so it could be reinterpreted with each generation.  But the language of the Constitution is broad for the simple reason that it is a constitution; it was never intended to, in the words of Chief Justice John Marshall in Marbury v. Madison (1803), have the “prolixity of a legal code.”

Additionally, there is no evidence in the historical record that the Founding Generation ever intended to assign such a sweeping, authoritarian power to the judicial branch.  To the contrary, those who drafted and ratified the Constitution assigned it such a limited role in our system of government that in Federalist 78 Alexander Hamilton called it the least dangerous branch.

The very idea of establishing a majority of attorneys sitting on the highest court as a naked power organ would have been repulsive to a generation who had committed their lives, fortunes, and sacred honor to a war of liberty against an unaccountable, centralized government.  They feared giving government too much power and strived to create a democratically-elected government of internal checks and balances that exercised limited, enumerated powers.

Proponents of such a judicial oligarchy also fail to explain how, if the Constitution is in fact evolving, such changing mores may not also result in certain rights, even those explicitly guaranteed in the Constitution, from being limited.  Though the very purpose of the Constitution is to protect certain rights from government interference, an evolving Constitution would make all rights dependent on the will of current societal values.

But, assuming for the moment that the courts were intended to interpret an evolving Constitution with each new generation, proponents of such judicial activism provide us little guidance on how they are supposed to accomplish such a mission.  In fact, these proponents decry the use of every available means by which judges could measure an evolving society.

For instance, they claim judges cannot be elected because they might be susceptible to the whims of the majority of the people.  They argue vigorously against the use of public opinion polls, and shudder at the very notion of putting such issues to a vote of the people.

They ridicule the federal model whereby those directly responsible to the people can inquire into a judicial nominee’s sense of society’s evolution.  And they even go so far as to claim that a majority of the people cannot vote judges off the bench if they happen to erroneously guess current societal mores; a guess, by the way, that they needed to arrive at by only a simple majority.

Without these methods, it is impossible for judges to measure how far a society’s values may have evolved.  But that is precisely the point.  Rather than allowing democracy to run its course as a changing society enacts legislation reflecting its evolution, judges see it as their role to lead such a society to where all but a small, judicially-favored minority want it to go.

This isn’t judging, but activism; this isn’t interpreting the Constitution, but dictating from the bench.  The effort to remove the Iowa Supreme Court justices on November 2nd is not because they may have gotten a single decision wrong.  Rather, it is because they have set themselves above the fundamental will of We the People as expressed in our written state constitution.

Sadly, however, this activism has become the norm among the liberal elite who make up our judiciary, bar association, and law schools.  It is the reason why so many liberals, from billionaire George Soros to all three pro-retention groups here in Iowa, are defending the current system which they dominate from start to finish.  And this is why the judicial branch needs to undergo a fundamental change via a constitutional amendment, either at a constitutional convention or through the legislative route.

This is a battle over who is supreme—the fundamental will of the people as expressed in their written Constitution, or the whims of a majority of a handful of cloistered attorneys.  When voting this November, vote to remove the three state supreme court justices, to hold a constitutional convention to make needed changes to the system, and for state senators and representatives who will work to make the judicial branch the least dangerous branch once again.

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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 nathanwt@juno.com.




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