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
Penumbra fever!
Mike Maskell,
What the Legislature grants, the Legislature can remove. What do you think the 25th Section of the Judiciary Act of 1789 says?
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…
These democrat “kooks” are abundant in state legislatures. They mainly come from urban 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 republican “kooks” are abundant in state legislatures. They mainly come from rural areas.
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.
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…
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…
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
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.
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.
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.
“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.
Foolish and stupid beyond belief.
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.
There are very few minorities in Iowa, so being 3/5 of a white farmer like Schultz should hardly bother anybody, right?
“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
What any fool can do, he will do.
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?