April 8, 2009

"If Iowans choose to open the hood on the Iowa Constitution, it could invite all sorts of tinkering, law professors and state lawmakers said today."

When I first read that, I missed the comma after "tinkering." Tinkering law professors! The worst!

So... anyway... this is a column by Jennifer Jacobs in the Des Moines Register dealing with the aftermath of the state court decision finding a state constitutional law right to same-sex marriage. Iowa voters have the power to call for a constitutional convention, where various constitutional amendments would be proposed and, if adopted, would be submitted, separately, to the voters for ratification.
A constitutional convention is a heady thought for Iowans who see that as a possible way to put the brakes on gay marriage in Iowa.

“I’m inclined to hope they succeed, if that’s their strategy,” said Senate Majority Leader Mike Gronstal, who has saluted Friday’s Iowa Supreme Court ruling legalizing gay marriage. “There’s a lot of good, progressive issues that we could pursue: a woman’s right to choose, guaranteed health care for all Iowa citizens, workers’ rights — so if there are people that want to help us get to a constitutional convention, that’s kind of my dream world.”...

Anything and everything – conservative issues, liberal issues – could eventually come to pass after such a convention, Iowa lawmakers and constitutional scholars pointed out.

“It’s truly a wild card — or a trump card, depending on how you look at it,” said Sen. Merlin Bartz, R-Grafton.

Drake Law School professor Mark Kende said: “Politically, Iowa has moved a little bit left. One concern might be if you’re on the right and you want to get rid of the gay marriage decision, but the state is moving left, what are you opening up? On the other hand, there’s a tradition of more effective campaigns on the right. Even if you’re fewer in number, the right can be more passionate and vocal and organized.”
There hasn't been a constitutional convention in Iowa since 1857. What would it be like today to put everything up for grabs?
Conventions were more popular early in the nation’s history, said Todd Pettys, a law professor at the University of Iowa.

“We’re a lot more cautious about it now,” Pettys said. “People say, 'Who knows what these people are going to cook up and what if it catches fire briefly and we sort of drive ourselves off a cliff?’”
You may think you'll get the one thing you want, but there will be fights over other things, and who knows where the people will end up when they are asked to inscribe all sorts of new rights into the state's highest law? Do you think the conservative arguments — for cutting out rights that the state courts have found — will do better than the liberal arguments — for giving the courts new texts to expound?

It would be fascinating to watch one state's people struggling to decide what they want in their constitution. Will they understand that the question is how much power they want for their courts and how much they want to keep for their own democratic choice? You don't get to vote on the constitution too often. It's a democratic choice to deprive yourself of democratic choice — if you make new rights — or to get it back — if you withdraw rights.

***

By the way, how would you like a national constitutional convention?

29 comments:

ricpic said...

Tinkering law professors know what's best;
Those who must obey: all the rest.

Quayle said...

Only unprincipled people would be swayed by such an argument.

Principled people will realize that it is better to live by the majority, even if you die by the majority on some other issue.

Richard Dolan said...

The call for a constitutional convention must put the "living constitution" crowd in a bit of a bind. Assuming one accepts the basic premise of the "living constitution" approach, there is no good argument why a small group of (typically superannuated) lawyers should be the arbiters of of how far it may have matured. The danger is that such a covention will get hijacked in the same way that political caususes can be, but if that comes to pass, the people will have ended up with the constitution (and the government) they deserve (by reason of lack of participation, diligence or skill). But at least no one will have much to complain about.

NY has had periodic constitutional conventions, and has survived the experience. The most recent one was in 1967.

The problem in all of this is the uniquely American view that a constitution is a necessary protection against democracy. There is something to that idea, of course, but no one has come up with a way to protect democracy from its erstwhile protectors, making the cure ultimately worse than the disease.

rhhardin said...

I'd prefer voter amending being restricted to the purpose of voters remedying wayward court decisions that the legislature is powerless to affect.

If the legislature could accomplish the same thing, then it must be done by the legislature.

Dust Bunny Queen said...

By the way, how would you like a national constitutional convention?

About as much as I would like to have chopsticks shoved into my ears.

Isn't the circus already big enough in Washington? Don't we already have enough clowns?

ricpic said...

Richard Dolan says that constitutions, acting as protectors against democracy have turned out to be worse in their effects than democracy run amok. But we don't know that to be the case, in that democracy has not run (completely) amok in America precisely because of constitutional restraints.

peter hoh said...

Would a federal marriage amendment be an example of "embark[ing] on a course of inscribing one after another of the current preferences of the society . . . into our Basic Law"?

TMink said...

While I oppose gay marriage I do support that in Iowa the decision was made by the legislature and not the courts. And as a state's rights issue, Iowa should be allowed to sanction the unions they decide to sanction.

Trey

peter hoh said...

Trey, you seem to have confused Vermont (legislative action) and Iowa (court case).

Der Hahn said...

The question of a convention is coming up because the Democrat leaders who control the Iowa House and Senate will not allow a constitutional amendment to be proposed and debated in the Legislature. According to the rules of order for the House and Senate, the deadlines for getting action on bills so they can be brought up for vote on the floor has passed. Known in the state as the 'funnel', the deadlines this year were March 13 (approval by a House or Senate committee) and April 20 (approval by House or Senate and a committee in the other). I'm sure the IASC was totally unaware of these deadlines when they issued their ruling, of course, and the Democrat leadership is just following the rules....

former law student said...

I suspect both Iowa and the US would be left worse off than before. The last time Illinois had a constitutional convention, the new constitution granted large cities (essentially Chicago) Home Rule. This polarized the state by making the regulatory climate in Chicago quite different from even the nearest suburbs. This in turn increased middle-class flight as well as industrial flight to the suburbs, which hurt Chicago's tax base. At the same time, in the name of reform, the constitution made the General Assembly less representative: Till then, each party nominated two candidates for Assemblyman, each Assembly district being represented by three Assemblymen. Thus Chicago Republicans and downstate Democrats always had someone in Springfield to champion their issues. Getting rid of minority representation polarized the state even more, as Republicans -- even ones living in adjacent suburbs -- had no reason to care what happened in Chicago.

former law student said...

Further, Illinoisans have declined to hold any more constitutional conventions, even though by the 1970 constitution, they must decide whether to have one or not at least every twenty years.

Trevor Jackson said...

FLS, I don't think Iowa should or will have a constitutional convention (as much as I like Gronstal's "bring it on"-type response), but because it lacks one large, dominant metro area like Chicago, the negative outcomes of an Iowa convention would probably not repeat Illinois' error.

kentuckyliz said...

Lest the SSM crowd thinks a state or national constitutional convention is a good idea, just imagine what could happen if the SarahPAC got the upper hand in controlling it.

If we are an equally polarized nation in our elections now, what makes us think that wouldn't be true in a constitutional convention?

The results could be awful and threaten the stability of the state/nation.

Maxine Weiss said...

I'm all for a National Constitutional Convention. It would finally close the door on ERA and sink Roe v Wade in one fell swoop.

----Which is exactly why it will never happen.

AlphaLiberal said...

Rep King (Lunatic-Iowa) commenting on the Iowa court decision:

"When these kinds of things happen, it sucks me into the Iowa policy in a way that I haven't been sucked into it in a while," King told The Des Moines Register. "It's not a predominant component. But when these kinds of things happen, does it make me more or less likely? The answer is more likely."

Special! Gee, wonder why he's afraid of the homos AND talking about all that sucking?

Call for Dr Freud!

m00se said...

Of course the democratic representative would say that the welcomed a constitutional convention for the possibility to enact all sorts of scary liberal initiatives - how else is he going to convince the conservatives to not hold one? If he was so enamoured of it in the first place, why didn't the liberals convene one first?

Classic bait and switch deal making...

peter hoh said...

In other same-sex marriage news, opponents released this video, promising to bring together a "rainbow coalition" to protect marriage.

Trevor Jackson said...

"If he was so enamoured of it in the first place, why didn't the liberals convene one first?"

Read the article, m00se. Liberals and conservatives alike have to wait till 2010 before a convention can be, er, convened.

Now, if you want to say Democrats are blocking attempts to amend the state constitution through the legislature, you'd be right. But that's something else.

Methadras said...

When did Iowa become a bastion of leftist/liberal nonsense?

Methadras said...

AlphaLiberal said...

Rep King (Lunatic-Iowa) commenting on the Iowa court decision:

"When these kinds of things happen, it sucks me into the Iowa policy in a way that I haven't been sucked into it in a while," King told The Des Moines Register. "It's not a predominant component. But when these kinds of things happen, does it make me more or less likely? The answer is more likely."

Special! Gee, wonder why he's afraid of the homos AND talking about all that sucking?

Call for Dr Freud!


So, you've finally decided to show your discredited, repugnant, fecal-caked face around here again I see? Don't you have any shame? Don't you have a modicum of dignity about the utterly low-class bearing you've decided to adopt? You aren't worth the shit you shovel and your feeble attempts at closeted-homophobe humor is a failure yet again. Just like you.

Methadras said...

Dust Bunny Queen said...

Isn't the circus already big enough in Washington? Don't we already have enough clowns?


Clowns come in all kinds of different species. Unfortunately, most of them are either the ultra-super-extreme right wing bug-eyed zealots or Democrats. It makes one feel like you are on an island of clowning.

John Lynch said...

Constitutional conventions are a way to amend the federal constitution, as well. I can't think of any case where it happened, but it's in the document.

XWL said...

I modestly proposed tinkering with the US Constitution more than two years ago, but instead of a convention, more of a 'Founding Fathers II: The Quickening' approach would be appropriate.

I started out with 13 folks, expanded it to 15 (to include this blog's host), and then expanded it finally to 21. I think I'd keep most of the 21 on there now, except I'd replace Andrew Sullivan with somebody less crazy like Courtney Love.

rcocean said...

Yes, those crazy voters in Iowa, who knows what those crazzzy Iowans would propose and vote for.

Of course, the same Iowa voters elected a Democrat legislature and Obama, so maybe they wouldn't be so craazzy after all. But why take the risk on democracy?

Better leave this stuff to the experts. They'll take care of us.

Of course, its really a non issue. The anti-gay marriage crowd are too stupid and apathetic to even start the process.

Eli Blake said...

Look, whatever you want to say about this, things are slowly moving towards recognition of gay marriage.

Ten years ago it was a radical idea. Even civil unions were considered a radical idea. And states that put anti-gay marriage initiatives on the ballot regularly passed them with 80% or more of the vote.

Yesterday, Vermont became the first state with gay marriage passed by the legislature (nothing there about a court ruling either. It was vetoed by the Governor but then the veto was overridden by both houses of the legislature.)

It is true that I believe that right now if there were a national referendum on gay marriage it would lose-- though not overwhelmingly so (last year prop 8 won 52-48% in California, and identical propositions won in Arizona and Florida but with less than 60% of the vote.) Looking at the demographics of the prop 8 vote, one number stands out-- it lost by more than 2-1 among voters over 65 but won almost as heavily among voters under 30. This suggests that what ever the anti-gay marriage arguments are, they aren't winning the day with the younger generation.

In other words, my response to gay marriage opponents is this: You may still have the numbers, but we who support the right of anyone to choose who they will marry have the momentum, and time is on our side, not yours.

Eli Blake said...

And here is another interesting caveat:

The District of Columbia is now on the verge of passing a gay marriage law.

The reason this is interesting is that no D.C. law actually goes into effect until it is ratified by Congress.

So we may therefore have a gay marriage debate on the floor of the house, which I believe would be a great thing.

Joe said...

Law professors and state lawmakers complain about tinkering with the state constitution. Just too funny.

Eric said...

Eli, one state, ONE, has adopted SSM democratically. And just because attitudes have shifted in the pro direction doesn't mean they'll keep shifting that direction.