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May 11th, 2012

Mr. Living Constitution

By Nathan Tucker

In remarks at Drake Law School’s inaugural Iowa Constitution Lecture Series in March
, the Chief Justice of the Iowa Supreme Court made the remarkable assertion that he is Mr. Constitution, literally.  Proclaiming that our “Iowa Constitution has always been a living constitution,” Chief Justice Cady assigned to the Court the role of being the living embodiment of that Constitution.

In Cady’s view, the seven justices of the Supreme Court are a continuous constitutional convention unto themselves, redefining terms and phrases as they “sort through the growing understanding to give greater meaning to equality over time…”  They are a judicial cabal whose job it is to “sort through each controversy to draw out the true will of the people” that Iowa’s founding generation, and even contemporary society, may be blind to.

Cady acknowledges that “originalism naturally flows from the way courts have functioned in interpreting law in general,” such “as with statutes.”  However, he posits two theories as to why this simple and routine approach does not apply to the Iowa Supreme Court in interpreting the state’s constitution.

First, he argues, originalism “is simply inconsistent with the approach Iowa embraced a century and a half ago and has consistently followed throughout history.  Originalism has not been Iowa’s way.”   He is unable, however, to cite a single quote from anyone during the period that Iowa’s Constitution was drafted and ratified who understood that document to create a judicial oligarchy.

Instead, he cites two 19th century cases in which the Court ended segregation in schools and public accommodations, praising his predecessors for “engag[ing] in analysis that considered the meaning of equality that was taking shape at the time in Iowa…Society at the time was changing its understanding of blacks, and so too did the constitutional principle of equality.

A tyrant does not became any less tyrannical simply because he laid claim to dictatorial powers long ago and may occasionally have reached just results.  Ends do not justify the means, no matter how much we may applaud them.  Though explicitly rejected by Cady, “changes to [the constitution] sought by later generations [is] to come [only] by the formal democratic process of amending the constitution, not by judicial decisions.”

Secondly, Cady argues that originalism has no place in Iowa because the public “has never rejected a constitutional decision of the Iowa Supreme Court over the last 155 years through the constitutional process of amendment.”  Instead, ‘“even when a new principle of equality has been applied in a way that was greeted by the public with displeasure or surprise, Iowans have chosen the contemplative approach…”

Cady confuses the inability of voters to overcome the high hurdle of passing a constitutional amendment with public “acceptance of the court’s [role] to carefully and accurately sort through each controversy to draw out the true will of the people.”  To state that a tyrant has yet to be checked is hardly the same as saying the citizens have accepted his power as legitimate.  Just ask the three justices removed by voters in 2010 for their role in the 2009 Varnum decision.

In a revealing statement, Cady insists that this alleged public acceptance occurs because the “Iowa Supreme Court has never led the public down a path of individual rights that it refused to go.”  For Cady, the Court’s job is to be our enlightened masters, imposing their own political, moral, and social ideals on Iowans as they lead us toward a higher plane of enlightenment.  He believes it is their responsibility to guide us past our fear, guns, and religion to the better angels of our nature.

He praised Varnum for the Court’s role in opening ”the door to the public’s increased understanding of marriage equality.”  In authoring that decision, Cady wrote that “equal protection can only be defined by the standards of each generation” and that it is the Court’s role to lead a reluctant society to “a new understanding of equal protection.”

Rather than allowing democracy to run its course as a changing society enacts legislation reflecting its evolution, Cady sees it as the Court’s role to lead society to where none 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.

This is not “the constitutional way of life in Iowa,” but an attempt by some of the justices to set themselves above the fundamental will of We the People as expressed in our written constitution.  This is judicial tyranny.

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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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