Republican Iowa legislator Jason Schultz has introduced legislation to rid the state courts of the scourge of . . . precedent.
Schultz wants to pass a law that prohibits the “use [of] judicial precedent, case law, penumbras, or international law.” He does allow judges to continue to use ink.
Schultz would effectively gut the legacy of William Blackstone and over two hundred years of American jurisprudence. Under the bill, a court could not interpret ambiguities in a law. The system of appellate courts would be shattered since lower courts would not be able to rely on “case law” or precedent. No one seriously believes that this law will pass. There is sufficient adult supervision in Iowa to stop it. It is the legislative version of graffiti and shows the same type of senseless flailing that characterizes much of our politics today.
Schultz is a farmer. He is serving his first term in the Iowa House.
Here is his proposal:
A BILL FOR
1 An Act relating to judicial authority, and making penalties
2 applicable.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:1 1 Section 1. NEW SECTION. 602.1100 Judicial authority.
1 2 1. A judicial officer shall not use judicial precedent,
1 3 case law, penumbras, or international law as a basis for
1 4 rulings. A judicial officer shall only use the Constitution
1 5 of the United States, the Constitution of the State of Iowa,
1 6 and the Code of Iowa as the basis for any ruling issued by such
1 7 judicial officer. The only source material that may be used
1 8 for interpreting the Constitution of the United States by a
1 9 judicial officer in this state shall be the Federalist papers
1 10 and other writings of the founding fathers to describe the
1 11 intent of the founding fathers, and if such source material is
1 12 used, the full context of the source material must be used by
1 13 the judicial officer.
1 14 2. This section is not reviewable by the court.
1 15 3. A violation of this section by a judicial officer shall
1 16 be considered malfeasance in office and subjects the judicial
1 17 officer to impeachment under chapter 68.
1 18 EXPLANATION
1 19 This bill relates to judicial authority.
1 20 Under the bill, a judicial officer shall not use judicial
1 21 precedent, case law, penumbras, or international law as a
1 22 basis for rulings. The bill specifies that a judicial officer
1 23 shall only use the Constitution of the United States, the
1 24 Constitution of the State of Iowa, and the Code of Iowa as the
1 25 basis for any ruling issued by such officer.
1 26 Under the bill, the only source material that may be used
1 27 for interpreting the Constitution of the United States by a
1 28 judicial officer in this state shall be the Federalist papers
1 29 and other writings of the founding fathers to describe the
1 30 intent of the founding fathers, and if such source material is
1 31 used, the full context of the source material cited must be
1 32 used by the judicial officer.
1 33 The provisions in the bill are not reviewable by the court.
1 34 A violation of this bill by a judicial officer shall be
1 35 considered malfeasance in office and subjects the judicial
2 1 officer to impeachment under Code chapter 68.
2 2 A judicial officer is defined in Code section 602.1101(7).
LSB 6124YH (2) 83
jm/rj
Kudos: Michael Patrick Maskell
Makes me want to jump on that happy bus and go to Iowa right now.
Is there something in the water, mushrooms or magic seeds that this Republican made into tea?
Or is he just being honest and boot strapping what they are doing at the federal level to state law?
After all he is just doing away with any rules of established conduct. Or maybe the enactment is just self serving and he has something that is coming out?
What any fool can do, he will do.
“To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
–Alexander Hamilton
There are very few minorities in Iowa, so being 3/5 of a white farmer like Schultz should hardly bother anybody, right?
Why aren’t the opinions expressed in the Anti-Federalist Papers considered to be just as valuable? They were arguments against adoption of the Constitution based on interpretation of the Constitution. Weren’t they?
And if the Federalist Papers are to be used as a guide for expounding on the Constitution; what should be the cut-off? Are papers written and published after most of the states had already ratified the Constitution really a good source?
I think the Representative’s proposed legislation would do more to promote judicial activism than it would to curtail it. I think the lower court should be suspected of malfeasance when they fail to follow precedent. Not the other way around.
Foolish and stupid beyond belief.
“I think the Representative’s proposed legislation would do more to promote judicial activism than it would to curtail it.”
Duh,
I think you have the purpose right. Those who rail against “judicial activism” are being disingenuous in their strategy. What they really are in favor of is “judicial activism” that upholds their positions and the right to decry “judicial activism” when the result is one they’re not in favor of. All just part of a propaganda game. This Iowa Legislator is just being “far too honest” in laying out his intent.
Since Rep. Schultz is a farmer when he’s not legislating, I suspect we are seeing an example of the effects of long-term exposure to pesticides. Or perhaps Iowa has abolished the common law and I just missed it.
What possible benefit could there be to this law? I am not an attorney, but wouldn’t this be unconstitutional? Is this some sort of attempt to stop judicial review at the state level? Very odd.
I’d bet that this proposal wasn’t the brainchild of this frist-term legislator, but that it was submitted to him by some outside group. I don’t think anybody expected this to pass. I think it was submitted as more of a “this is how far we can take it if you don’t pass some more reasonable laws to address the subject”. It sure wouldn’t be the first time I’ve seen that tactic used.
Hwo many farmers know much about the courts? I’m gonna take a wild guess and say not many.
Is judicial activism a problem? I think it is. We only recognize it when it doesn’t benefit us. When a judge performs a legislative role, it is activism. It’s usurpation.
I think the best way to prevent judicial activism is to clearly define what it is. It doesn’t seem like anybody wants to do that. Maybe that’s because both sides have benefitted from it.
I think that legislators that create laws with minimum sentences usurp the role of the judiciary. It swings both ways, and respect for the proper role of legislators and judges is what it will take to correct the problem.
Tancredo wants to bring back the literacy test for voting. I think we need a stupid test before you are allowed to serve in government.
In Arizona, the Republicans in control of the legislature can’t balance the budget, but are busy being obnoxious busy bodies:
- Bill requiring divorcing couples to wait an additional 4 mos before they can be granted divorce:
http://azstarnet.com/article_3dae7780-0037-59c2-a0dd-63f3ce8715a7.html
- Bill that would ban recipients of state aid from purchasing alcohol, cigarettes or cable TV:
http://azstarnet.com/news/local/govt-and-politics/article_a20478bb-553c-5c1e-b9a9-27aa27a95cae.html
Although this bill is destined to die a slow death in committee, when I first read it, I thought it would be an interesting thought experiment to think about what would happen if such a law was adopted nationally.
I suspect we’d end up with something resembling a civil law system along the lines of countries I’m sure Rep. Schultz is a huge fan of like France…. Or North Korea…
Our patent system would be decimated. The only reason we have any idea what “obvious” means for purposes of 35 U.S.C. 103 is because of case law. Civil law patent systems like the EU’s work decently, but how long would it take our Congress to pass all the details? Given the present state of our patent system, such a disruption would be disastrous.
As for torts… Well a bill like this would be the ultimate coup for the corporate interests that call for “tort reform” (which I read as “changing the laws to stop individuals from bothering noble businesses with their annoying cries of ‘your product killed my son’”). If the legislature hasn’t thought of it, you can’t sue for it.
Could the bill be found unconstitutional by the Supreme Court? Would SCOTUS be prohibited from relying on Marbury v. Madison to establish it’s power to interpret the Constitution? It seems like dividing by zero – the bill is unconstitutional, but is binding until overturned by SCOTUS, so SCOTUS can’t use case law to overturn it until it has been overturned…
Or maybe, when someone hasn’t thought their cunning plan all the way through, I shouldn’t hurt my head trying to think it through for them…
Oh, yes, I also just remembered section 2 of the bill… “This section is not reviewable by the court.”
Again dividing by zero – it is unconstitutional for the legislature to prohibit the courts from reviewing the law, but the courts can’t find the law unconstitutional until they review it…
Mike Maskell,
What currently makes SCOTUS be bound by precedent? Were former members of the Supremes considered to be smarter jurists than the current members? (no partisanship intended). We didn’t have a formally educated judge on the Supreme Court intil around 1880.
When it comes to the Supreme Court, the doctrine of stare decisis should be recognized and addressed by opinion, but I wouldn’t consider it to be binding. The highest courts in a state should do the same. Continuity is the purpose of the doctrine, but the perpetual binding of equals to the decisions of their predecessors is not something set forth by our Constitution, nor do I consider binding application a good thing for our appellate courts. However, I do think that controlling authority must be adhered to in the most strict terms.
These republican “kooks” are abundant in state legislatures. They mainly come from rural areas.
They should also pass a law banning the use of soil in farming. It’s dirty, can be a source of disease and contains nasty bugs. Makes about the same sense as what Mr. Schultz has in mind.
These democrat “kooks” are abundant in state legislatures. They mainly come from urban areas.
Duh,
SCOTUS is not bound by precedent, but this law (or rather my hypothetical national equivalent) would bar them from using it at all in their decisions. Since SCOTUS’ power is largely based upon the precedent of Marbury v. Madison, a law removing all precedent would remove most of SCOTUS’ power.
I suppose there could be a way around this – after all, Marbury v. Madison was decided without the benefit of its own precedent… So the courts would basically have to start from first principles in every decision and work their way up to having the tools to decide whatever case is at hand. Lexis and Westlaw would be bankrupted by the amount of storage space they’d have to buy to handle these opinions that would probably exceed hundreds of thousands of pages each…
Mike Maskell,
What the Legislature grants, the Legislature can remove. What do you think the 25th Section of the Judiciary Act of 1789 says?
Penumbra fever!
Maybe I’m mistaken, but it appears to me that use of precedent in rendering a judicial decision is inherent within the concept of the subject ‘judicial power.’
http://ballotpedia.org/wiki/index.php/Article_V,_Iowa_Constitution
Bob Esq.,
Thanks for the hyperlink. I found this provision to be a little strange.
Jurisdiction of Supreme Court
“The supreme court shall have appellate jurisdiction only in cases in chancery, and shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe; and shall have power to issue all writs and process necessary to secure justice to parties, and shall exercise a supervisory and administrative control over all inferior judicial tribunals throughout the state.”
The part I find unusual is “under such restrictions as the general assembly may, by law, prescribe”. It looks like the Iowa Legislature does have the power to pass the statute submitted by Rep. Schultz. I don’t think it would be a good idea to do so, but I think it would be constitutional.
Ah, the citizen legislator. Every Libertarian and term-limits supporter’s dream. Living in Texas, I know some “regular folks” who would think legislator Schultz is just dandy.
“You’ll get a fair trial followed by a first class hanging” – Judge Roy Bean
Duh: “The part I find unusual is “under such restrictions as the general assembly may, by law, prescribe”. It looks like the Iowa Legislature does have the power to pass the statute submitted by Rep. Schultz. I don’t think it would be a good idea to do so, but I think it would be constitutional.”
Here’s the thing, the Iowa State Constitution did not empower the state assembly to redefine ‘judicial power.’ Judicial power includes the process by which the judiciary reaches its decisions. And since Christopher Columbus Langdell introduced the ‘case method’ back in the late 1800′s, all lawyers and judges have been following suit to the present.
And after the bill is passed, how will the lawyers and judges continue to practice?
Impossibilium nulla obligatio est
Nobody has any obligation to the impossible.
Bob Esq.,
The U.S. Constitution does not dictate the role of the state judiciary, or even require that the state have a judiciary. We have all grown accustomed to state judiciaries, and the role of those judiciaries is pretty much the same in all states, but that doesn’t mean that it has to be. Does it?
The Supremacy Clause requires the Constitution of the United States, and the laws created in the pursuance thereof, to be supreme, but it grants no power to any judge of a state that the state constitution doesn’t provide. Does it?
Anything not granted by the constitution is reserved to the people. The people by themselves, or through their elected representatives can grant powers like judicial review, but that doesn’t mean that any state must grant their judges the power of judicial review. Does it?
Bob Esq.,
Don’t misunderstand my argument. I think the proposed legislation is ridiculous. The courts are already enough of a crapshoot. I’d hate to see what they looked like when precedent became “a thing of the past”.
Duh: The U.S. Constitution does not dictate the role of the state judiciary, or even require that the state have a judiciary.
That’s because the State’s never empowered the Fed to do so; you’re reading it all backwards.
Duh: The Supremacy Clause requires the Constitution of the United States, and the laws created in the pursuance thereof, to be supreme, but it grants no power to any judge of a state that the state constitution doesn’t provide. Does it?
The Constitution itself, as written, has nothing to do with the State judicial power. So to say it ‘grants no power to any judge of a state’ is completely off the mark.
Duh: Anything not granted by the constitution is reserved to the people.
NO! The STATES delegated SPECIFICALLY ENUMERATED POWERS to the Fed via the Constitution; thus the name. Whatever it didn’t confer, it retained necessarily. The constitution does not confer anything. This isn’t semantics; this is crucial matter of order of operations. If you don’t understand that rights confer power and not vice versa, your rhetoric regarding the constitution can become incredibly confused and nonsensical; see Griswold.
Duh: The people by themselves, or through their elected representatives can grant powers like judicial review, but that doesn’t mean that any state must grant their judges the power of judicial review. Does it?
You’ll have to be specific as to what you mean by ‘judicial review.’ State courts don’t operate on the same principle as SCOTUS with its self acclaimed power in Marbury.
Bob Esq.,
When I speak of judicial review, I’m talking about the power to invalidate an act of legislature.
I’m not convinced that the Marshall Court declared any self-acclaimed power via Marbury that was not already granted. I already asked this of “Mike Maskel”, but I’ll ask you too. What is your interpretation of the 25th section of the Judiciary Act of 1789?
“That’s because the State’s never empowered the Fed to do so; you’re reading it all backwards.”
I agree. With that being the case, if the Iowa Supreme Court “shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe”, it looks to me like the General Assembly of Iowa may not be able to define judicial power, but they can limit it under the provisions of the Iowa Constitution.
I would never put that kind of power in the hands of an elected branch. I’d only permit that to take place by amendment.
Duh: When I speak of judicial review, I’m talking about the power to invalidate an act of legislature.
Okay.
Duh: I’m not convinced that the Marshall Court declared any self-acclaimed power via Marbury that was not already granted. I already asked this of “Mike Maskel”, but I’ll ask you too. What is your interpretation of the 25th section of the Judiciary Act of 1789?
It didn’t amend the Constitution; see Article V. Article III states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress not only has no power to amend the constitution, but it was also never granted the power to increase or enlarge the power of SCOTUS by any mode of legislation. In fact, New York specifically reminded the convention of this limitation in its ratifying papers.
Me: “That’s because the State’s never empowered the Fed to do so; you’re reading it all backwards.”
Duh: I agree. With that being the case, if the Iowa Supreme Court “shall constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe”, it looks to me like the General Assembly of Iowa may not be able to define judicial power, but they can limit it under the provisions of the Iowa Constitution.
Sure, but that’s not what the assemblyman’s trying to do.
Duh: I would never put that kind of power in the hands of an elected branch. I’d only permit that to take place by amendment.
Like I said, you’d be extinguishing law and legal process as we know it; leading to complete f’n anarchy.
Bob Esq.,
“In fact, New York specifically reminded the convention of this limitation in its ratifying papers.”
??? Please enlighten me. To what are you referring?
“That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be encreased enlarged or extended by any Fiction Collusion or mere suggestion; And That no Treaty is to be construed so to operate as to alter the Constitution of any State.”
http://avalon.law.yale.edu/18th_century/ratny.asp
Bob Esq.,
Thanks. I’m no expert in 18th century English, but I think the words of the NY Convention were intended to show objection to federal courts encroaching on the jurisdiction of the state. I’m not familiar with the term “Fiction Collusion”.
Let’s put it this way:
In Re: SCOTUS claim of power of Judicial Review
The ratifying convention of NY made it crystal clear that “the Jurisdiction of the Supreme Court of the United States … is not in any case to be encreased enlarged or extended by any Fiction Collusion or mere suggestion; (e.g. via Marbury v. Madison)
Bob Esq.,
So do you believe that Congress can increase the jurisdiction of the Supreme Court such that it could permit the Court to rule on the the validity of a Act of Legislature that is repugnant to the U.S. Constitution? Do you believe that the intent of the 25th Section was to do just that?
It all becomes very confusing, especially when you consider that it wasn’t until nearly 85 years later that Marbury was deemed to be the source of the Court’s power to make such rulings.
Thought you might like to read this Bob Esq.
http://books.google.com/books?id=pj-HAAAAMAAJ&pg=PA153&dq=%22twenty-fifth+section%22+%2B%22judicial+review%22&as_brr=1&cd=2#v=onepage&q=%22twenty-fifth%20section%22%20%2B%22judicial%20review%22&f=false
Duh: So do you believe that Congress can increase the jurisdiction of the Supreme Court such that it could permit the Court to rule on the the validity of a Act of Legislature that is repugnant to the U.S. Constitution?
Categorically no. Pragmatically speaking, that’s just the way it turned out.
Duh: Do you believe that the intent of the 25th Section was to do just that?
I believe Article V trumps the Judiciary Act.
Duh: It all becomes very confusing, especially when you consider that it wasn’t until nearly 85 years later that Marbury was deemed to be the source of the Court’s power to make such rulings.
Did you ever notice where Marshall happened to place the portion of the decision dealing with the Court’s power to render it?
It’s at the end.
Van Alstyne, William W., “A CRITICAL GUIDE TO MARBURY V. MADISON” (1969). Duke Law Journal
Bob Esq.,
Thanks for the reference. Most of it is available online.
http://books.google.com/books?id=4PPHObaRlN0C&pg=RA1-PA331&lpg=RA1-PA331&dq=A+CRITICAL+GUIDE+TO+MARBURY+V.+MADISON&source=bl&ots=AkWvhx3ilT&sig=iAImTfhqZAmzf2reUZCGGhRJ0cA&hl=en&ei=K7B0S76zJsHYnAf7u6jDCQ&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBUQ6AEwAw#v=onepage&q=judiciary%20act%20of%201789&f=false
I’ll read it over tomorrow morning.
Have you ever read about the moot court exercise from 1797?
“A moot court exercise: debating judicial review prior to Marbury v. Madison” by Donald Melhorn.
“On August 31, 1797, student members of the Moot Court Society at Tapping Reeve’s law school in Litchfield, Connecticut suspended a rule requiring issues for argument to be put in hypothetical cases, to permit their debating in the abstract a question which especially interested them: Have the judiciary a right to declare laws, which are unconstitutional, void? This moot court proceeding provides a rare pre-Marbury record of an actual argument and decision about what has come to be called the power of judicial review.(2) This article is the means of first publication of that record.
Judicial review was a debatable but not yet widely debated constitutional question in 1797. How it was that American law students came to it then, as an issue for moot court argument, presents an intriguing inquiry for study in the history of early American legal education. As developed here, that inquiry will extend to the Litchfield Law School, its curriculum and methods of instruction, the practice in its Moot Court, the student advocates who appeared in this case, and possible extracurricular sources of their interest in the issue they debated.”
http://www.questia.com/googleScholar.qst;jsessionid=L03T3d42pv02fmtyS1zn1F0nKp28vH6vyTnlH8VGcWvk01tDytly!-129032011!323863511?docId=5001654449
Let me try that last hyperlink again. If it doesn’t work, make sure you highlite the whole URL then copy and paste it into your browser.
http://www.questia.com/googleScholar.qst;jsessionid=L03T3d42pv02fmtyS1zn1F0nKp28vH6vyTnlH8VGcWvk01tDytly!-129032011!323863511?docId=5001654449
Growing up in Hitler’s Germany??
No. Copy and paste the entire link into your browser. The entire link starts with “http” and ends with “4449″. For some reason, the “-” in the hyperlink messes with the wordpress formatting and causes it to crop the full link.
Bob Esq.,
One of the students who participated in the moot court, George Tod, went on to become a Supreme Court Justice in Ohio. He later was impeached by the House for declaring a law involving the right to a trial by jury unconstitutional, but was acquitted by one vote in Senate trial.
Makes you want to puke! But when there is a social earthquake, it is to be expected
The use of the word “penumbra” makes me think that this is a backdoor attempt to overturn Roe v. Wade.
I doubt the legislation was thought through that deeply… However, dissatisfaction with Roe v. Wade is usually a prime motivation for those who rail against “judicial activism” and call for courts to change their behavior (not that they know how courts are supposed to behave).
This is obviously the brain child of the likes of Glenn Beck.
http://www.livedash.com/transcript/glenn_beck/6528/FNC/Friday_January_29_2010/145287/
“America, I… want to go to the law here. . . . . [Roscoe Pound] made the fundamental change in America. They no longer studied the Constitution or Constitutional law or the founders. They changed to study case law, which again no revolution. Just evolution. So we never, we slowly but surely keep moving away from the Constitution and the founders. And we end up just looking at the last case.”