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Et Tu, Iowa? The Too-Powerful Judiciary

wedding-ringsIowa Supreme Court rules gay marriage ban unconstitutional

More legislating from the bench, this time via the midwest. In a unanimous deicision, the Iowa Supreme Court ruled the law defining marriage as between one man and one woman as unconstitutional.

So, what next three people, four? Hey what about the “man” and the “woman” part? What about about your pet lizard? I mean….why not?

One of my son’s most recent history assignments pondered the question, at the time of the writing of the Constitution: “Is the judiciary too powerful?”

Any takers on that question?

But seriously, why is it too powerful?

The judiciary is too powerful not because it doesn’t fit into the concept of a republican government (emphasis on the smallr “r” here). Judges are appointed, in most cases, by elected representatives. In some cases, their continuation in office, voted on directly by citizens.

It is my humble opinion that the judiciary is the branch that suffered from vagueness during the Constitution’s formation. Two major conflicts that threatened to unravel the work of the Constitutional Convention, took much time and deliberation to hammer out. It seems, when one reads thorough accounts of the events in Philadelphia that hot summer, there is the distinct impression that the judiciary was somewhat an afterthought.

The two greatest conflicts were small states vs. large states and slavery.  The small states, large states question took many weeks to resolve and the result was called “The Great Compromise”.

The intellectually dishonest accuse those who define themselves as “Constitutional Originalists” as wanting to return to slavery. What they are either ignorant of or purposefully omitting, is that there were many delegates who wanted to include the abolishment of slavery in the Constitution. The reality is, had the issue been pushed any farther, there would be no America today. The best compromise they could define involved the prohibition on imports of slaves beginning in 1808.  The conflict was deferred to another day.

The amount of power held by the President engrossed more time than the judiciary. Hot on the heels of the Revolution and a healthy distaste for monarchy, the delegates carefully considered this role.

For all of this balance of power, three branches talk, the legislative branch was to be most powerful. It was to be so because it was the most republican, the most diffuse.

The comparatively short amount of time spent considering the role of the judiciary included a brief consideration of a blending of the judiciary with the executive, in an effort to review the passage of laws from Congress. This notion was rejected. Both because it granted too much power to the President and because it “muddled” the role of the judiciary.

During this debate, Rufus King of Massachusetts, stated, “The judges, when cases came before them, would surely stop the operation of the laws as were repugnant to the Constitution; they should therefore have no part in making them, not even the negative power of the veto.” (emphasis added)

Rufus’ argument seems to have won the day. Judges were to have no part in making law.

Besides this consideration, the remaining time spent regarding the judiciary was focused on appointing judges, how would they be appointed? There was little time spent on the extent of judicial power.

There is much that one can read regarding the desire for an independent judiciary by many of the delegates. And independent it should be, not just of the other two branches of government, but also of the agendas of “squeaky wheel” groups, the blowing winds of “societal change”, or the opinions of European judges.

The Founders relied on “good behavior” as the standard for judges retaining their benches, yet they didn’t define it. The provided no means to remove judges who do not operate under the Constitution, who legislate from the bench. Because the legislative branch is a larger body, it makes sense the process of removal would be contained inside itself. But the removal of a President involves the other two branches; the House with impeachment and the Senate with a trial presided over by the Chief Justice of the Supreme Court.

Some mechanism should have been provided, involving the legislative and executive, to remove judges when necessary.

Most of the men who worked to devise a new government for the Colonies understood that man is corruptible. Yet they seemed to leave the potential corruption of judges out of their thoughts.

Clearly Iowa needs an amendment to its State Constitution to protect the institution of marriage.  The United States Constitution apparently needs on as well.

We are seeing the breakdown of society, regularly aided by judges. Whatever our feelings of “compassion”, it is like fighting gravity to deny that the family unit is the foundation of all society. The fabric of this institution has already been degraded, the paper shredded. Death by a thousand cuts.

If you want to know why we are in such trouble today, it is these core principles, these foundations that are in such disarray that have lead us to the point at which we now find ourselves.

The Founders, generally learned and wise, did know what they were talking about when a number of them stated what the “American Experiment” required for success:

A moral, educated society.

Do we have either?

Source: Miracle in Philadelphia, Catherine Drinker Bowen, 1966