Originally posted here by Steve Deace:
http://www.whoradio.com/cc-common/mainheadlines3.html?feed=150515&article=5282631
You can read it here if you like, but if you catch the link above the proper formatting will show you the highlighted part of the ruling below that are relative to the discussion that took place between Steve Deace and John Haskins
———-
Thursday 04-09-2009 8:46am CT
Last night we interviewed my good friend John Haskins, our senior fellow at the Veritas Institute (our radio think tank for the study of truth).
The Oxford educated Haskins was once one of the leaders of the Massachusetts pro-family movement that faced the exact dilemma we’re facing here in Iowa over homosexual marriage. That is until he joined a long list of principled conservatives like Prof. HerbTitus, Dr. Alan Keyes, and Judge Roy Moore that the sellout leaders of the Religious Right and conservative movement betrayed because they demanded actually act according to the courage of our stated convictions.
Below is a summary of our interview with John about the defining issue in Iowa of our time. I believe the content in this interview is so important that we’re going to leave this up for the rest of the week. Please feel free to share with as many principled people who care about our republic as you can.
Has the court MADE gay marriage into the LAW in Iowa?
Of the numerous questions that surround the current social maelstrom, this is one of the most central. We’ve moved incrementally toward a place where the minority has the power to define terms, replacing the objective standard of the Constitution with the subjective of “differing viewpoints “. Now, advocates of God’s definition of marriage find themselves stymied in a war of words with reporters, officials, even governors (http://www.whoradio.com/cc-common/news/sections/newsarticle.html?feed=121648&article=5279081) who through ignorance, or otherwise, are constricting themselves (and the public) to a mercurial, assumption-based quicksand that brooks no opposition. To put us back on solid ground, we must know what is true according to the law and be ready to give an answer based on those facts. Here’s a breakdown of key concepts courtesy of John Haskins, senior fellow of the Veritas Institute.
Q. What is legal positivism?
H: Simply defined, it means law is being made in the courtroom by judges, even though the American form of government denies that. Of course, every lawyer in America has been brainwashed to believe that they do. We’re now educating lawyers to think that law is whatever the judges say it is. That is a state of slavery, Abraham Lincoln and Thomas Jefferson understood that. It also puts lawyers in a position of violating their oath: they’re sworn to uphold the law and Constitution, which means if there’s a conflict between the law and what the judge says they’ll follow the law.
Q. Why does it matter if we give homosexuals the right to marry?
H: Gay marriage is intended by those who push it (meaning, radical homosexual strategists) to eradicate a) parents rights, b) to impair religious freedom, freedom of speech,of association, the most basic constitutional rights we have. This is admitted by these people in private, in published articles, in law classrooms.
a) It has been used this way in Massachusetts (see the case of David Parker who was jailed for telling his child homosexuality was wrong). The idea that children belong to the state is totalitarian governments inculcate in their education. These people has said in strategy meetings “if we do own jobs right, within a few years, children will agree with us, not their parents, about homosexuality (paraphrased)”. This has happened in Quebec, where they threatened to take children away from Mennonite families, in Germany, using a law passed by Adolf Hitler (details on worldnetdaily.com). They mean to guarantee that they are in charge of teaching your children what to think.
b) Churches that do not agree to hire homosexuals as clergy, priests, youth ministers, the churches will be threatened with losing their tax exempt status. This means in many cases that they lose their building. Sermon content will be closely monitored for “hate speech” that calls homosexuality a sin. A Swedish minister was sentenced in criminal court to twenty years in prison for preaching Bible passages that call sodomy a sin. People will be sued for hate speech for disagreeing with homosexuality in public.
Q: Is the court opinion in Varnum v. Brien now the law of Iowa?
H: No, it’s not the law. It has nothing in common with the law, none of the characteristics of the law. Judges cannot make law, but for several generations, lawyers have been indoctrinated with an understanding of the law completely removed from what the founding fathers established. In every state system, you can find judges admitting that they don’t have the power to make law. In Massachusetts’ constitution, you have an explicit statement that judges cannot suspend the execution of the laws. Mitt Romney’s constitutional advisors told him that the Goodridge opinion was void and he should ignore it.
Judges cannot make law; that’s why the legislative branch is called such. Legislating is making law. In 2002, Iowa Dept of Transportation v. Soured, the judges said “we are bound to follow the legislature’s definition and may not add words and change terms under the guise of judicial construction. What are they doing now? They’ve struck themselves down. In O’hara v. the State in 2002, “To solve the dilemma posed by the amendments, we must read into Chapter 20 as amended, language that is simply not there. This, of course, is not within our province. We are bound by what the legislature said, not by what it should or might have said.” These are the judges admitting they cannot do what everybody thinks they just did. When they want to act like dictators, they finesse the language to claim rights they’ve said they don’t have. It is so deeply rooted in English and American law that it was understood until recent generations.
Professor of Jurisprudence Hadley Arkes said of the Romney situation, “the deeper failure must go to the man who stood as governor, the man who stood holding the lever s of the executive branch. And if it is countdown for marriage, it is countdown also for Mitt Romney,, whose political demise may be measured along the lines of moves he could have taken. It became clear that even conservative lawyers have come to accept the premise that gave courts a position of supremacy.” You will see this with your conservative leaders and lawyers in Iowa.
Q: What is the legal and constitutional response to what the court did Friday?
H: People have to understand that all the court can do is offer an opinion. They cannot execute their own opinions, they don’t have the power to do so. All the founding fathers understood this. The Supreme Court justices even admit this, if you look carefully at what they wrote. They said the language “must be stricken from the statue.” They did not say ‘we are striking it’ because they know they can’t do it. Now it’s up to the legislature to agree. In Massachutsetts, the legislature never agreed. The laws against gay marriage are still on the books. Then Romney came in and violated the law. There is no court order forcing lawmakers to comply. The Iowa Judges are telling legislative and executive powers what they must do, but the judges themselves have no power to change the law. We’ve been giving them more power than they have.
Q: Why are elected officials, even conservatives playing along with this scam?
H: You have to have the heart of a warrior to fight a culture war. The conservative side tof the culture war is being led by people who are not warriors. If they were, they’d be putting their lives on the line, if necessary. There are people overseas fighting for our constitution and they die. Lawyers won’t even risk their reputation.
This is not the law in Iowa. It has no legal authority, and that statement has been upheld by lawyers and law professors over and over again, even by the judges themselves. No public official in Iowa has the right to act on this opinion. It is false, it is an outlaw opinion. Judges are not the definers of legal terms: those are defined by the people in their own constitution and the legislature in their own statutes.
Q: Where do we go from here? A constitutional amendment?
H: An amendment may or may not be successful, but the point is, legally, there’s not even a need for one. This opinion is not the law.
Q: Doesn’t it become “functional law” if political officials act as though it is?
H: There’s n such thing as functional law. I understand what you mean, but that’s surreal. Mitt Romney invented a term to explain this type of thing: defacto law. This term is nowhere in the law itself. You just have a) the law and b) what people do. Governors, recorders, city clerks, justices of the peace either obey the law or violate the law.
Q: How can the conservative minority in the Iowa Legislature proceed?
H: The people we keep electing are not familiar with the Constitution they swear to uphold, so they’re not dedicated to it, they’re certainly not willing to lay their careers on the line to defend it. We’re sending people overseas to die for constitutions we’re shredding back at home. I’d advise the voters as well. We’re out shopping and sitting in front of cable TV, while people are dying for our liberty. This is nonsense. What can we do now that we’ve elected people who have no respect for the Constitution, not even enough to read and understand it?
The first thing you do is make sure anybody who telling you we need a constitutional amendment as step one, is exposed as incompetent or putting up a head-fake. This is not true, there’s no law that has been created. The Massachusetts Constitution says: “the people are not controllable by any other laws than those to which their constitutional representative body have given their consent.” That’s the law of the legislature. Same thing in Iowa, you have a republican form of government. So officials cannot issue marriage licenses that are outside the law.
You have to punish officials who act in opposition to the law. You must remove them from office for violating the law. People have to get used to impeaching/removing officials that do not uphold the law. These judges should be impeached. Once you start thinking in these terms, you’re in the right mindset.
Compare the current Iowa opinion on marriage against the court’s previous admissions:
In Varnum v. Brien, April 3, 2009, the Iowa supreem kort said: Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.
BUT in 2008 they also said: GEORGIA M. RATHJE v.MERCY HOSPITAL,No. 115 / 04-2081, Supreme Court of Iowa, February 22, 2008
It is, of course, the role of the legislature to write statutes, and it is our role to interpret them based on their application in the course of litigation. Moreover, the legislature can rewrite a statute to reflect its intent when it does not believe our interpretation in a particular case has accomplished this goal. Yet, these general principles of separation of powers and fundamental duties do not totally absolve us from our continued responsibility to interpret applicable statutes in each case and, more importantly, to revisit our past interpretations if we are convinced they have not clearly captured the intent of our legislature. We adhere to precedent, but also remain committed to clarifying the law as we work with our precedent. When our interpretation of a statute has created problems in the application of the statute to subsequent cases, we should be willing to reexamine our precedent to see if our understanding of the legislative intent can be better articulated. See Ruth v. Dight, 453 P.2d 631, 634 (Wash. 1969) (reexamining past interpretation of statue of limitations in light of “constant intellectual bombardment”).
AND
Iowa Department of Transportation v. Soward, 650 N.W.2d 569 (Iowa 09/05/2002)
The legislature is its own lexicographer. Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 533 (Iow a 1981). So in searching for legislative intent, we are bound by what the legislature said, not by what it should or might have said. Krull v. Thermogas Co., 522 N.W.2d 607, 612 (Iowa 1994). Additionally, we are bound to follow the legislature’s definitions and “may not add words or change terms under the guise of judicial construction.” Iowa Beef Processors, 312 N.W.2d at 533. If the legislature has not defined words of a statute, we may refer to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage. Bernau, 580 N.W.2d at 761.
AND
O’HARA v. STATE, 642 N.W.2d 303 (Iowa 04/03/2002)
To solve the dilemma posed by the amendments, we must read into chapter 20, as amended, language that simply is not there. This, of course, is not within our province. We are bound by what the legislature said, not by what it should or might have said. Krull v. Thermogas Co., 522 N.W.2d 607, 612 (Iowa 1994).20Moreover, we “may not add words or change terms under the guise of judicial construction.” Henriksen v. Younglove Constr., 540 N.W.2d 254, 258 (Iowa 1995).
AND
MACERICH REAL ESTATE COMPANY v.The CITY OF AMES, Iowa, Appellant, No. 87-1754, Supreme Court of Iowa, December 21, 1988
The key question is when “extinguishment” and “divestment” occur, and what difference there is, if any, between those terms. The city would have us read the statute as only applying to those cases where “property rights are [already] extinguished upon cessation of service by the railroad.” Macerich, on the other hand, would have us read it as stating, “railroad property rights[,] which are extinguished upon cessation of service by the railroad[,] divest….”
[36] Both readings would require us to read something into the statute. Both readings are plausible. In State v. Lohr, 266 N.W.2d 1, 4 (Iowa 1978), we said that punctuation is seldom highly persuasive in determining legislative intent. On the other hand, we may not add words to a statute under the guise of judicial construction. State v. Hesford, 242 N.W.2d 256, 258 (Iowa 1976).
AND
SUNSET MOBILE HOME PARK v. PARSONS, 324 N.W.2d 452 (Iowa 09/29/1982)
We interpret that portion of section 562B.10(4) which requires “sixty days written notice given by either party” to establish both a minimum notice period and also an optional termination date for a month-to-month periodic tenancy. We recognize that this interpretation, which allows a month-to-month periodic tenancy to terminate at a date other than the end of a recurring monthly period, is at variance with the common law rule that we set out previously. Applying rules of statutory construction, however, we conclude that the statute abrogates the common law rule.
[44] The clear language of the statute provides only for a sixty day notice to cancel the lease and contains no provision that the
458 [324 NW2d Page 458]
[45] termination should fall at the end of a rental period. In interpreting a statute we may not add words of qualification or alter the plain terms of a statute. State v. Hesford, 242 N.W.2d 256, 258 (Iowa 1976). To adopt the tenants’ position would require the lease to extend beyond both the normal termination date and beyond the required sixty day notice period. This construction would go beyond the express language of the statute, and we reject it.
AND
IOWA BEEF PROCESSORS, INC. v. MILLER, 312 N.W.2d 530 (Iowa 11/25/1981)
In our role of determining the meaning of statutes, the ultimate goal is to ascertain, and if possible, give effect to the intention of the legislature. Janson v. Fulton, 162 N.W.2d 438, 442 (Iowa 1968). In this endeavor we are aided by principles of statutory construction. We examine the language used in the statute and the purpose for which it was enacted. All parts of the statute are considered together, without giving undue importance to a single or isolated part. Osborne v. Edison, 211 N.W ..2d 696, 697 (Iowa 1973). We then give a sensible and logical construction to the legislation; we avoid interpretations that produce strained, impractical, or absurd results.
533
[312 NW2d Page 533]
[25] Telegraph Herald, Inc. v. City of Dubuque, 297 N.W.2d 529, 532 (Iowa 1980). The manifest intent of the legislature prevails over the literal import of the words used. Janson v. Fulton, 162 N.W.2d at 443.
[26] Applying these principles to section 85.71(1), we first analyze the language and purpose of the provision. The express overall purpose of section 85.71 is to specify employees who are entitled to Iowa workers’ compensation benefits for injuries sustained during employment outside the territorial limits of this state. The enacting clause of subsection (1) provides benefits for an employee whose “employment is principally localized in this state.” (Emphasis added). The enacting clause is followed by an explanatory or definitional clause containing two requirements: “his employer has a place of business in this or some other state and he regularly works in this state, or if he is domiciled in this state.”
[27] An isolated, literal reading of the definitional clause would provide coverage based upon domicile alone, if20the employer has a business in any state. We have often said that the legislature may be its own lexicographer, and that we are bound to follow its definitions, State v. Di Paglia, 247 Iowa 79, 84, 71 N.W.2d 601, 604 (1955), and may not add words or change terms under the guise of judicial construction. State v. Hesford, 242 N.W.2d 256, 258 (Iowa 1976). “If, however, the definitions are arbitrary and result in unreasonable classifications or are uncertain, then the court is not bound by the definitions.” 1A C. Sands, Statutes and Statutory Construction § 20.08, at 59 (4th ed. 1972). Defining employment that “is principally localized in this state” to allow benefits to be based exclusively upon the domicile of the employee, with no part of the employment relationship either originating or performed in Iowa would, in our opinion, be arbitrary.
[28] The principles of statutory construction discussed previously require us to consider all parts20of a statute together. Thus, the definitional clause “or if he is domiciled in this state” must be construed with reference to the enacting clause’s language of “employment [that] is principally localized in this state.” The plain meaning of the enacting clause indicates that the employee must perform the primary portion of his services for the employer within the territorial boundaries of the State of Iowa or that such services be attributable to the employer’s business in this state. “Domicile” means a person’s permanent place of residence. Black’s Law Dictionary 435 (5th ed. 1975). Domicile alone is inapposite to whether an employee’s “employment is principally localized in this state.”
JANSON v. FULTON, 162 N.W.2d 438 (Iowa 11/12/1968)
We have also said “* * * that the manifest intent of the legislature will prevail over the literal import of the words used; that a thing which is within the intention of the lawmakers is as much within the statute as if it were within the letter; and a thing within the letter of the statute is not within statute unless it is within the intention of the legislature. [Citing authorities].” Sinclair Refining Co. v. Burch, 235 Iowa 594, 596, 16 N.W.2d 359, 361.
TIMOTHY EWING, v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, No. 7-97420/ 07-1166, Court of Appeal of Iowa, February 13, 2008
We decline Ewing’s invitation to rewrite and expand the statute because “when a statute’s language is clear, we look no further for meaning than its express terms.” State v. Kamber, 737 N.W.2d 297, 298 (Iowa 2007). Subsection two is a directive to the commissioner of insurance to assure the availability of stacked coverage and its clear language and express terms do not support the expanded requirements urged by Ewing. See Iowa Code § 516A.2(2); see also Iowa Code § 516A.1 (containing an example of clear language for insurance contract requirements). Under the express terms of the statute, Ewing’s recovery is limited to $100,000. See Iowa Code § 516A.2(3).
AND
KEASLING v. THOMPSON, 217 N.W.2d 687 (Iowa 04/24/1974)
Although legislatures exist to decide the wisdom of statutes, courts ex ist to decide their constitutionality. When the legislature’s judgment of the wisdom of a statute is shown to conflict with a constitutional limitation on legislative power, it is the responsibility of the courts to strike the statute.
AND
CHICAGO & N.W. RY. CO. v. FACHMAN, 255 Iowa 989, 125 N.W.2d 210 (Iowa 12/10/1963)
If the constitutionality of these statutes cannot be sustained save by resort to refinements in distinction and sophistry in reasoning, in which no court should indulge, and which would be destructive of the limitations above referred to on legislative power, they should fall. Vardaman v. McBee, supra, 198 Miss. 251, 21 So.2d 661; 16A C.J.S., Constitutional Law, section 489
