Judicial review and majority rule in Iowa — a historical view

In the watershed case Varnum v. Brien, the Iowa Supreme Court declared unconstitutional, as violative of state equal protection guarantees, Iowa's statute providing that '[o]nly a marriage between a male and female is valid.” The 2009 decision opened the door to same-sex marriage in Iowa and closed the door on the judicial careers of three of the justices deciding Varnum after voters refused to retain them at the 2010 election.

In advance of last Tuesday's election, individuals and organizations disagreeing with the outcome in Varnum waged a campaign against retaining three other justices who participated in the case. Employing such terms as unelected, elitist, liberal, and activist to describe the three justices, the 'vote no” campaign reiterated the 2010 argument the court in Varnum had acted unconstitutionally 'in ignoring the will of the majority” to 'legislate from the bench.”

A brief review of Iowa history, however, refutes the premise of this argument.

ESTABLISHING JUDICIAL AUTHORITY

Thirty-six delegates convened in Iowa City on Jan. 19, 1857, to begin the work of drafting a state constitution to replace the one in use since admission of Iowa into the Union in 1846. The delegates largely distrusted the Iowa General Assembly as a law-giving institution, because, consistent with state legislatures in older states, it had a history of enacting specific laws that favored individuals and special interest groups. This distrust of the Iowa General Assembly led the delegates to include within the new state constitution certain procedural hurdles before legislative enactments could become valid law.

The new state constitution also provided for individual rights that went beyond those individual rights found in the U.S. Constitution. Borrowing from the Declaration of Independence, the delegates asserted at the very outset of the Bill of Rights that '[a]ll men are, by nature, free and equal, and have certain inalienable rights - among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.”

The delegates chose to link freedom, equality, life, liberty, and the pursuit of happiness with the phrase inalienable rights. This phrase signaled their allegiance to the philosophy of John Locke that no mere legislative body, no mere government, no mere constitution could ever intrude upon those natural rights of man that predated government as an institution and existed independent of government.

Significantly, the delegates placed their trust in the judiciary to rein in the legislature and governor when legislation impinged upon an individual right. In providing that 'the judicial power should be vested in a Supreme Court,” the delegates accepted without question the U.S. Supreme Court's 1803 decision in Marbury v. Madison that enshrined the principle of judicial review in the U.S. Constitution.

In short, this principle meant that courts had ultimate authority to determine whether a statute or other law violated a constitutional provision. If a court thus determined that a statute violated an individual right, it had no choice but to invalidate it - no matter how much legislative and popular support the statute received before its enactment.

History thus reveals that the delegates premised the 1857 Iowa Constitution on the expectation that courts would invalidate statutes duly enacted by legislatures and signed by governors.

WHAT WOULD THE FOUNDERS SAY?

Living in an era in which the principle of equality only applied to white heterosexual males, the delegates to the 1857 convention surely would have been dumbstruck by the thought of John marrying Jim or Jane marrying June. But they would have been equally dumbstruck by the thought of many things in 2009 - such as female voters, interracial marriage, the International Space Station, $5 lattes, and Lady Gaga.

So it is difficult to say what Iowa's Founding Fathers would have thought of the outcome in Varnum if they had walked for some time in 21st century shoes. It is, in contrast, quite easy to say they would have disagreed with any complaint the court in Varnum had unconstitutionally 'ignored the will of the majority” to 'legislate from the bench.”

Indeed, the delegates would know that such complaints turn constitutional theory on its head: A Bill of Rights seeks to protect the rights of minorities, not of the majority, which has the means to protect itself through the legislative process. Minorities would always need constitutional protection from legislatures, Henry County delegate Rufus L.B. Clarke explained at the 1857 convention, because legislators 'may be worked upon by their own prejudices, by popular excitement, and by influences even less honorable than those.”

The delegates expressed concern that the people, too, may be worked upon by such improper influences. Johnson County delegate William Penn Clarke - chair of the committee on the judiciary, an Iowa Supreme Court Reporter, and an influential leader of the convention - despaired: 'A man who fills the office of judge creditably and profitably, must sometimes come in conflict with the prejudices and passions of the people. It is a notorious fact that those judges who have been the most upright in the discharge of their duties, have been unpopular ... [When an upright judge renders an unpopular ruling], there will be various demagogues gradually undermining him.”

PERHAPS THE STORM HAS PASSED

Varnum unquestionably constituted an unpopular ruling for many Iowans, perhaps a majority of them in 2009. Since then, demagogues near and far have campaigned to undermine all the justices participating in the decision even as new polls now suggest that a majority of Iowans find no objection to same-sex marriage. They fell far short of success in their latest 'vote no” campaign in advance of last Tuesday's election: around 65 percent of Iowa voters chose to retain the three justices who had participated in Varnum.

The retention vote aligns with Iowa constitutional history. The delegates to the 1857 convention expected that good judges must decide the scope of an individual's constitutional rights without taking into consideration the popular support of a statute impinging upon those rights. With respect to Varnum, then, the 'will of the majority” had no relevancy in determining whether the statute limiting marriage to a man and a woman violated the state constitutional guarantees to equal protection of the laws.

Perhaps, with last Tuesday's retention vote entered on the books, Iowans will no longer be subjected to the ill-founded complaints the justices deciding Varnum had acted unconstitutionally in 'ignoring the will of the majority” to 'legislate from the bench.”

' Bruce Kempkes is former Assistant Iowa Attorney General.