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March 20th, 2011

Clarifying Judicial Review

By Nathan Tucker

In a sign of the continued effect the Varnum decision has on the 2012 presidential race, Congressman Ron Paul (R-TX) has sought to clarify recent remarks he made regarding the authority of courts to overturn unconstitutional laws.

As previously reported in The Iowa Republican, Paul spoke recently at The FAMiLY Leader’s Presidential Lecture Series event in Pella where he appeared to defend the court’s power of judicial review.  According to the story:

When a reporter asked Paul if he supports the Iowa Supreme Counts ability to legalize gay marriage, Paul said, “I defend that constitutionally.” When the reporter clarified his question, Paul added, “Oh yeah, oh sure, every state has that right.”

Paul’s traveling press aide then interjected himself and told the Texas Congressman that he didn’t understand the question. Paul and the reporter went back-and-forth, and then Paul said that “he was asking about the ruling, not the justices.” Paul then turned to the reporter and laughed when he said, “Just make sure we give you the right answer.”

After a another laugh, Paul said, “I support the state of Iowa voting to get rid of the justices and write laws dealing with marriage, not the federal government.”

This produced consternation among those conservatives who, in the wake of the Iowa Supreme Court’s decision legalizing same-sex marriage, have claimed that courts can only issue opinions, not binding rulings.  Foremost among these advocates was the man sharing the stage with Paul in Pella—Bob Vander Plaats, three-time gubernatorial candidate and current head of The FAMiLY Leader.

Responding to Paul’s comments, Shane Vander Hart wrote that “I’m shocked that a constitutionalist like Congressman Paul would be fine with judicial review by the Iowa Supreme Court being viewed as equal with codified law.  Our legislature didn’t codify gay marriage, the Iowa Supreme Court decreed it.”

In response, Paul’s political director Jesse Benton provided Vander Hart with this clarification:

The set-up for the press questions was not ideal, and was difficult for Ron to hear clearly while standing on the elevated stage. Also, the way the question you reference in your article was asked in a bit of a confusing way. Ron is human, and did get momentarily confused. But, one thing that should not be confused is Ron’s long held, principled positions.

Ron does not support activist Judges overturning the will of the legislature, and he NEVER supports legislating from the Bench. He strongly supported the removal of the three Iowa judges this past fall and is a strong defender of Iowa’s right to protect traditional marriage.

Because this statement from the Paul camp didn’t directly address the legitimacy of judicial review, The Iowa Republican specifically asked Benton if Paul “believe[s] that courts have the ability to exercise judicial review and, in a related question, does he believe that court decisions are binding authority on the other two branches of government?”

In echoing long-standing conservative thought, Benton provided this response:

Congressman Paul is a strong defender of the Constitution’s Original Intent and believes judicial review is only proper when strictly applied in context of the Enumerated Powers.  Antonin Scalia is a good example of a Supreme Court Justice who applies this type of review. For example, the Court could review, and overturn, a federal ban on guns because it violates the Second Amendment or Obamacare because the individual mandate is unconstitutional. The Court should not, however, expand judicial review beyond the scope of original intent. The creation of a “Constitutional Right” to abortion in Roe V. Wade is perhaps the most famous example of the multitude of the gross oversteps by our judiciary.

Dr. Paul has consistently promoted legislation to reign in over-reaching courts. For example, his “We the People” Act, which will be re-introduced for the 5th consecutive Congress next week, would by legislative action remove issues like abortion and marriage from the jurisdiction of the federal courts. ‘We the People” would end the tyranny of Roe V Wade and allow the Iowa legislature to pass pro-life legislation without improper interference.

This is likely not the last time a potential presidential candidate will be asked about judicial review on the campaign trail in Iowa, but hopefully in the future they will be ready to provide a cogent answer the first time around.

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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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