Let's try this one more time

I’m still waiting for some Republican, any Republican, to explain the concept of judicial review to religious conservatives who refuse to accept the Iowa Supreme Court’s ruling in Varnum v Brien.

GOP moderates led by Doug Gross have been warning that Republican candidates won’t win in 2010 if gay marriage is their only campaign issue. But I haven’t heard anyone challenge the assertion by many conservatives that the Supreme Court’s decision is just an opinion with no legal force.

Since no Republican has stepped up to the plate, I’m offering a brief lesson on judicial review after the jump.

Here’s a good example of the typical conservative misunderstanding about the judiciary’s role. It’s an excerpt from a statement signed last week by four Republicans: former State Representative Danny Carroll of the Iowa Family Policy Center, former GOP Senate hopeful Bill Salier of Everyday America, Kitty Rehberg of the Eagle Forum of Iowa, and Pastor Brad Cranston of Iowa Baptists for Biblical Values.

There is a saying painted on one of the walls inside the Iowa Capitol building which reads, “Where law ends, tyranny begins.” Thanks to the unconstitutional action of seven Supreme Court Justices, Iowans now have to question if the rule of law will ever govern again, or if we will forever live under the tyranny of the judiciary. The resulting Constitutional crisis surrounding homosexual “marriage” has taught the people of Iowa several important lessons.

First, the court is no respecter of people, the law, or the constitution. Their willingness to force an entire state to pretend the law passed by the people’s representatives is irrelevant and their actions to force us to treat their opinion as law reveals a presumption of power that the Founding Fathers feared might one day settle in on the judicial branch.

Here’s the reality. The legislature has the power to make laws, but those laws cannot infringe on rights and freedoms protected by the Constitution. The judicial system is the venue for settling arguments about whether a law violates the Constitution.

Let’s leave gay marriage aside for the moment and walk through how judicial review affected a law conservatives didn’t like.

Last June the U.S. Supreme Court struck down parts of Washington, DC’s gun control law in a controversial 5-4 decision. The conservative majority abandoned seven decades of legal precedent holding that the right to bear arms is tied to service in a militia. Instead, five Supreme Court justices held for the first time that the Second Amendment confers an individual right to bear arms.

I disagree with the majority’s decision in that case. In fact, I find it laughable that Antonin Scalia and his so-called “strict constructionist” colleagues ignored the wording of the Second Amendment, which clearly places the right to keep and bear arms in the context of a “well-regulated militia.” The dissenting judges didn’t think much of the majority’s legal reasoning either.

Nevertheless, the U.S. Supreme Court unquestionably has the authority to strike down legislation that in its view infringes on constitutional rights. Liberals criticized the ruling, but you didn’t hear any of them claim that the city of Washington, DC should keep enforcing the handgun ban or other provisions that the high court invalidated.

Nor did any Republicans decry the “activist judges” who refused to respect the legislative intent of those elected to represent Washington. On the contrary, from President George W. Bush on down, Republicans praised the Supreme Court’s action.

It is not “tyranny” for a court to strike down a law. That is a long-accepted feature of our system of checks and balances.

Any questions?

  • Rule of Law

    I’m not a lawyer, but the rule of law seems to be the secret to our system of government. Especially, a free and independent judiciary. If judges were subject to the opinions of the politicians in the legislature or the executive branch, the lawless majority rules. A court can be no more activist than the legislative amendment process allows it be. There is no such thing as an activist court because the the legislature can always reign it in with a constitutional amendment. Americans and patriots believe this.  

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