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10/28/2010

'Unimagined rights', detailed by advocates of gay-less fantasy world

by Jeremy Hooper

This is what the Iowa Supreme Court's unanimous Varnum opinion actually says about "unimagined" rights:

In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens’ rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality.
See Lawrence v. Texas, 539 U.S. 558, 578–79, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508, 526 (2003) (acknowledging intent of framers of Federal Constitution that Constitution endure and be interpreted by future generations); Callender v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999) (“Our constitution is not merely tied to tradition, but recognizes the changing nature of society.”).

When individuals invoke the Iowa Constitution’s guarantees of freedom and equality, courts are bound to interpret those guarantees. In carrying out this fundamental and vital role, “we must never forget that it is a
constitution we are expounding.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L. Ed. 579, 602 (1819). It speaks with principle, as we, in turn, must also. See State v. Wheeler, 34 P.3d 799, 807 (Wash. 2001) (Sanders, J., dissenting).

Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government.
See Iowa Const. art. I, § 2 (“All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.”). While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time. See Iowa Const. art. X (“Amendments to the Constitution”).

It's a straightforward take on the obvious: That time can and should force a reassessment of past oppressions. American history is filled with instances that validate this outlook.

But Congressman Steve King (Very Far R-Iowa) says "never mind all that." Instead, he wants you to think that the unanimous Varnum panel just dreamt up some wacky, unimagined rights without any sort of justification or precedent:

(click to play audio clip)
*AUDIO SOURCE: FRC Action [FRC]

If you look back up at the above snippet, you'll see that the court explicitly mentioned "the people" and the right to amend the constitution. That's what makes this Iowa For Freedom effort even more egregious! The judges are in no way denying that Iowa's anti-LGBT contingent could, in theory, go through the proper channels of passing a constitutional marriage amendment. That was not their task. The judges task was to decide whether the state's laws preventing marriage equality passed the constitutional smell test, based on the current facts presented to them. They found the inequality stinky.

But this King ad is in no way surprising. Perhaps more than any campaign we've ever seen, this Iowa For Freedom effort is all about reducing the conversation to its most simplistic, base level. In a perfect world, it's this aggressive rejection of deep analysis that would be unimaginable to political thinkers of the year 2010.

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