Bill Description: Senate Bill 1233 (S1233) would prohibit courts from using any “body of religious or cultural law” that does not “fully support and conform with the rights of citizens as defined in the United States constitution and the constitution of the state of Idaho.”
Rating: -2
Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?
S1233 effectively mandates courts to employ a rigid textualism by stipulating that any “body of religious or cultural law” used by a court must “fully support and conform with the rights of citizens as defined in the United States constitution and the constitution of the state of Idaho” The problem with this wording is the common meaning of the rights enumerated in the Idaho and United States constitutions often no longer comport with our Founders’ original intent after a century of legal positivism. The purpose of originalism is to restore the proper meaning of these rights by interpreting the text in light of original intent. Oftentimes, original intent contradicts our contemporary understanding of the plain meaning of the text. For example, the Supreme Court’s decision in Roe v. Wade erroneously extracted the constitutional right to abortion from the text of the Fourteenth Amendment’s right to privacy. The Supreme Court was only able to correct this error in Dobbs v. Jackson by going beyond the plain text and finding the right to abortion is not deeply rooted in our nation’s history and tradition. S1233 would prohibit the reasoning of Dobbs by stipulating that for “a body of religious or cultural law” to be valid, it must first align with the plain definition of the right in question as enumerated in the Constitution. Recently, the Supreme Court of Wyoming ruled that residents had a constitutional right to abortion based on the plain text meaning of the right to make their own healthcare decisions. 1233 could facilitate Idaho courts issuing similar decisions, thus undermining the spirit of our constitutional order.
(-1)
Does it promote the breakdown of the traditional family or the deconstruction of societal norms? Examples include promoting or incentivizing degeneracy, violating parental rights, and compromising the innocence of children. Conversely, does it protect or uphold the structure, tenets, and traditional values of Western society?
The American legal tradition is the culmination of the broader Western legal and philosophic tradition. Accordingly, justices often cite authorities who may support the American tradition on a particular issue but not on another. This is particularly relevant when judges appeal to the principles of the common law, which originated from the English legal tradition, and natural law, which originated from the broader philosophic tradition of the West. S1233 could prohibit justices from citing theorists who have long been the cornerstone of our legal tradition, such as Blackstone, because it requires a body of “cultural law” to “fully support and conform” the rights as defined in the United States and Idaho constitutions.
(-1)
