MARK S. CADY, the chief justice of the Iowa Supreme Court, wrote the court’s landmark decision in 2009 in Varnum v. Brien, the same-sex marriage case. This is a speech he gave at Drake University in March 8, 2012 as part of the Iowa Constitution Lecture Series.  You can read the complete text of Cady’s speech here.  http://www.desmoinesregister.com/article/20120415/OPINION/120415003

Three events breathed life into this state’s constitution that were as important then as they are today. The first was our nation’s Civil War. Among the 76,000 Iowans who served the Union in the war were 287 black soldiers who began as volunteers and were later organized as the 60th U.S. Colored Infantry Regiment. This group of men literally saved the day at the battle of Wallace’s Ferry in eastern Arkansas, along with the lives of hundreds and hundreds of Union soldiers. These soldiers were recognized for their bravery and courage following the Civil War, and strong support for various forms of racial equality quickly followed.

In his 1866 inaugural address, Governor (William) Stone asked, “Have we that degree of moral courage which will enable us to recognize the service of these black veterans and do them justice?” Our Legislature promptly answered the question by proposing five amendments to the constitution to remove the word “white” from the suffrage clause, the census enumerations, Senate appointments, House appointments, and military service. In 1868, the public overwhelmingly approved the equal rights amendment with 57 percent of the vote.

The second event was in 1867 when Susan Clarke was denied admission to a neighborhood grammar school in Muscatine because she was black. The school board of Muscatine claimed it was empowered under the constitution and a statute to require her to attend a segregated school. The school board’s position was aligned with the understanding of the authors of the constitution, which rejected integration as a right and only allowed integrated schools at the discretion of local authorities.

Notwithstanding, the Iowa Supreme Court saw the claim of equality as something different than originally intended, holding that government had no discretion to interfere with school equality. Although the constitutional convention had rejected a provision that would require all schools to be “equally open to all,” the Iowa Supreme Court relied on the broader constitutional principle of equality and the meaning of that concept that had come into focus by 1868.

The third event was five years later in 1873 when Emma Coger was denied dining accommodations on a steamboat in Keokuk because she was black. It was the custom of the day for blacks to eat in a pantry area separate from the whites-only dining room, although Coger had paid for a ticket that included meals. The Iowa Supreme Court held that the constitutional principle of equality required black passengers to be given the same rights as white passengers, and that inferior dining accommodations did not satisfy the principle of equality written into the Iowa Constitution.

These three events are important for Iowa today as we increasingly hear the clamor of the larger debate over the proper approach for courts to follow in interpreting the text of the Iowa Constitution today, particularly when those interpretations involve the core principle of equality.

One theory of constitutional interpretation is that the constitution should be treated as a living document, so to speak. This approach maintains the constitution was designed as a foundation for a society to grow within its established belief system in a manner consistent with the increasing knowledge and understanding of the world.

The other view of constitutional interpretation is that the text of a constitution should be interpreted as it was originally understood at the time it was drafted and ratified. This view essentially recognizes the constitution as law that has a fixed and determinative meaning, as with statutes, and must be interpreted in that manner by courts.

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