Iowa Legislator Seeks To Bar Courts From Using Precedent or Case Law

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

48 thoughts on “Iowa Legislator Seeks To Bar Courts From Using Precedent or Case Law”

  1. 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

  2. Van Alstyne, William W., “A CRITICAL GUIDE TO MARBURY V. MADISON” (1969). Duke Law Journal

  3. 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.

  4. 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.

  5. 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)

  6. 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”.

  7. “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

  8. 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?

  9. 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.

  10. 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.

  11. 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.

  12. 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”.

  13. 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?

  14. 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.

  15. 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

  16. 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.

Comments are closed.