Friday, December 17, 2010
For the past few months I have been keeping a close eye on the situation that has been transpiring in Iowa. Because of one of the classes that I was taking - in rights protection and the judiciary - I was particularly interested in the ousting of three of the seven judges that legalized gay marriage in that State. Subsequently, there has been a lawsuit filed challenging judicial selection, a lawsuit challenging the retention vote (saying that it violated the Iowa Constitution), and a drive to begin articles of impeachment against the remaining judges who voted to approve gay marriage. The fact that the public is having this large of an impact in the judiciary is exciting, for it is showing that Iowans are more interested in politics, but at the same time, is leading down a dangerous road towards an erosion of our republican ideals.
All of these issues show that the judiciary is by far the least known about and appreciated branch of American Government. The judiciary, as evolved to its present day form, is obligated to ensure that laws pass Constitutional muster, through a process known as Judicial Review. This concept, explained further here, was established by Chief Justice John Marshal in the case Marbury v. Madison. It was Judicial Review that the Iowa Supreme Court in its ruling on marriage equality was using to strike down the gendered marriage law in that State.
Why do I bring this up? Why is this concept of Judicial Review so important? It is through Judicial Review that an act of the popularly elected Congress can be struck down as Unconstitutional. For the Courts to legitimately exercise this power, they must be kept secluded from the whims of the legislature - and by extrapolation the whims of the people that elect them. It is for this reason that the developments in Iowa are disturbing. For as the November election showed, an unpopular opinion can lead to judges losing their position on the bench. Thus, for fear of their jobs, judges may take the easy option out; just don't make any controversial judgments. This allows for the populous to ignore Constitutional principles in its drive to have majority rule.
This leads me to my second main point. Many Americans foolishly think that we live in a society that is a democracy, and that the peoples vote matters. Though the peoples vote does matter, it is not absolute; in fact it may be limited when it comes against the other foundation of our republic; The Rule of Law. The rule of law ensures is what both the U.S. Government and the individuals that make up the United States are subject too. We find this Rule of Law in our Constitution, as well as in the Constitutions of the fifty states. The judiciary is in place to ensure that the people and the government obey this rule of law set out in our Constitutions. Thus, when the Iowa Supreme Court invalidated the gendered marriage law in the States, they did so because it violated the Rule of Law. The people, in their passion, on the other hand; foolishly believing that their votes make the laws, voted out those individuals who were only upholding the true Rule of Law. This is damning for the concept of a Judiciary whose job it is to uphold this Rule; since if their judgments are deemed "unacceptable" by the passionate and (in my opinion) uneducated populous, they can be eliminated.
In Iowa, it now must be asked, is the Rule of Law supreme, as it is supposed to be, or are the wild passions of an electorate and a legislature now in control?
For your benefit, below is the full text of the Iowa's Supreme Court decision on marriage equality. Note their reliance on the Constitution (the Rule of Law if you will).
Iowa Supreme Court Ruling legalizing gay marriage in Iowa