The Iowa plain dealer. [volume] (New Oregon, Howard County, Iowa) 1867-1895, 1883-05-10
IOWA STATE WIS.
Minority opinion Upon the Amendmc,

i The following IL q synopsis OF Judge Bech'e
dissenting opinion in the constitutional
amendments case:
adhere to the conclusions announced in
my former dissenting opinion. NY re-ex-
animation of the doctrine involved In the
case and the powerful light shed upon IL by
the reargument has strengthened my con-
yiction that the Judgment OF the District
Court should be reversed
The Judge then briefly stated certain po-
| litca1 principles pertaining To the form Of
government OF our state, which he chased
/ rs follows:
First-sapreme political power inheres in
Second All political power is inherent in
| the people.
| 1hird-The enumeration Of the rights In
the constitution shall MT be construed to
impair or deny the othsTs retained by the
| people.
Fourth--The constitution of the Stat is
/ not u limitation upon or n surrender of the
absolute power of the people.
lie then took up the political view Of the
case, and went over the ground relating 10
| jurisdiction, as follows: TIE question u tho
| existence of the Government Is not for the
determination OF courts Ii Il not n judicial
question That existence Is Il fat made
known not by judicial decision, but iii tito
] manifestation Oh EONtfhllltUIal author ~.
| That the constitution does exist is shown by
| the existence Of a Government on wntca
1t alone rests But how shall we discover
the contents and provisions of the con ii IL
ton, conceding its existence Mt the archives
of the State. Mhere IL was kent. That s.
| the constitution that was adopted aud ptn-
mulgatod BY tho representatives OF tie
sovereign people. Behind That Instrument
| the courts cannot 20 The existence OF the
Government IL manifested hy the displa. Of
Its authority. Our laws and ins,itu ions rest
upon the const tuition, the supreme law
\ of the Iand This constitution II SUI
| preme because ii was promulgated by
the reIre entatives of the people, who
are sovereign, and not because
the courts upheld it. Its existence does not
depend on the decisions Of the judiciary Of
| the State. Its existence n the supreme law
cannot be questioned by any authority In
the State. Quest ons pertaining 10 the ex-
l isence OF the constitution NUT he deter
mined by that authority of the state which
is charged with the duty and power OF shap-
! ing its policy and preserving and augment
/ ing its strength and which is enlarged by the
sovereign people with the task OF framing a
constitution for their approval, and promul-
eating II when approved. This authority
| pertains to and liz extended by what Is often
/ called the political department Of the Gov
\ eminent Courts are clothed With no such
authority. They cannot, therefore, deter
mine questions pertaining to the validity
/ and existence Of the ms tuition. Such de-
Examinations must be alone made by repre-
sentatives of the people who exercise po-
! litical departments Of the government This
conclusion appears to he supported by rea-
4 son, aud is in accord with the principles Of
our Government. The judicial department
OF the Government has nothing to do with
shaping the policy or forming the institu-
tions Of State, or with protecting ii or au :
menting its strength 1t cannot. therefore,
determine the validity of any question strik-
ing at the validity and binding force of the
constitution, unler which all political func-
lions which pertain to these matters must
be exercised. The constitution shapes the
form of government and prescI1bes the limi-
tations upon legislative authority. I'm
der ii the political institutions of q State are
established and its policy. ForeshadoWed
by the constitution, which lays the tounda-
tion and erec,s the framework of the Gov
eminent, which must be completed by legis-
lation in accord with the measures estab-
lished and plans contemplated by that in
strument. ii follows that the validity of the
existence of constitutional proposition
involves the political question of what rec
ignition Of the constitution will give 1t life,
and consulate in law such recognition. 1t
must be made by authority cmanating from
the department OF the Government
charged with such duty 1t has been
fully determined that the constitution
is the supreme law of the land 1t is
which is the only political department of
State. aud when once launched into the life
of supreme law its life can be deteriorated
by no power save that which created it. the
sovereign will OF the people No depart
ment OF the Government. then. can uucst!on
its existence II il subject To change only
by the exercise OF the sovereign viii of the
people. These doctrines will think meet
with no DENIAL. The different doctrines and
rules do not Apply to amendments of the
constitution. The same soy, reign authority,
| the people, who made the constitution MADE
| the amendment
IL the court may defeat ii they may defeat
all amendments where the same rregulari-
ties exist They therefore could defeat an
amendment affecting their own jurisdiction.
There Is no limit To the number of amend
ments which may be prepared and adopted
in h. manner contemplated by the consti-
tuition By The change OF the constitution
in that way the Government may be reeog-
nizcd, the authorities OF departments
changed or taken away. New courts may lie
created ami tax. he place Of the old ones
These changes cold lie rs rreat n Nould
be introduced hy |. new constitution, and
may he introduced Ivy amendments proposed
together by the acts of the same Legisla-
turc. voted upon ut the same Gle etion, pro-
mulgated at the same time, in the same
manner. Ii the court may defeat the
amendment in question, il may overthrow
numerous Others in the same way. have
supposed Ii will not be IN answer TO this 10
si,ion to say that the courts will stop When
they reach the point affecting their jnris-
diction II thai be true, we would have
the spectacle OF conrts existing under
amendments. notwithstanding the irreou-
lnisies therein are held 10 be sufficient TO
defeat the amendments.
Courts often refuse TO adhere to their
decisions, but oyerrule them and recognize
the principles OF law diametrically opposed
to the rules o. their first decision Judges
sometimes change their opinions but more
frequently the decisions are oyer1uled hy
reason of new Judges taking the places OF
those who have retired from the bench. An
instance Of this kind H. in the recent history
OF this court, in 1853 We held that statute
authorizing township 10 levy in aid OF the
construction OF railroads was unconstitu-
tional and void Hansen ". Vernon, :.
Iowa, 3l.l In lsso less than two years after
that tho decision If this court was over
ruled, and Il statute identical in its effects
and general provisions Was declared to DC
constitutional. After the decision of the case
'rst-named, two Of the judges concuiriag
therein retired from the ben h, and their
successors uniting with the Judge who dis
agreed III the hrst opinion constituted ma
| jointly which ayerruled Hansen vs. Vernon
and established ether rules directly OF p site
/ To those approved in tina ca sc. Decisions
of courts do not make law. buf simply de-
clare what the law Is. The judicial theory
| Is the law a. declared by the courts existed
and was OF force lctore the decision Ii ii
| very plain that ii the courts have iurisdtc~
| ton TO say what Ii constitutional and what
Is not, that iii amendment to tina instra-
ment was or was not lawfully adopted and
/ Is therefore not in force or Is If no eifec.,
/ the consils ution, the supreme lsw t. .lav,
may not he u morrow. TIE q ABILITY of the
constitution Is a1salu els nee ssary Tor tae
I 6 nnrat no slrfty ~ t3e @zas.
1 tnder the doctrine r. o3f4iteI bg a ma
/ iorstN 81 this tu.. tac ala.#tst.I tn the
Constitution IN stE" 1iau L. kna ;a4i the
manufacture and sil" ~ vine aai hecr liz
4 awful tn the advent Vt mex i'll. re. the
decision Of tbs coars. & "a anaef today.
hay ne otevlulea. aad 1 ane4l aesit de-
Z Jared vi Il ata iart of the oastsl ton
/ , sch DECISION so Ill have tae q I to de-
clare that the amendment wa yai.d from
/ the frs. AMI The citizens viii then find that