Idaho Legislature

The Idaho Capitol building is seen Thursday, Jan. 29, 2015, in Boise.

BOISE • Prompted largely by recent court rulings on gay marriage, an Idaho House committee voted Monday to introduce a resolution calling for the impeachment of federal judges who don’t follow the original intent of the U.S. Constitution.

The sponsor, Rep. Paul Shepherd, R-Riggins, said judges who read things into the Constitution that weren’t intended by the Founding Fathers are breaking their oaths of office.

“Original intent is really all we have,” he said. “Agenda and interpretation is what we’re all unhappy with.”

“Original intent” is a constitutional law theory, popular among conservatives, that the Constitution should be interpreted according to what the Founders intended when they wrote it. Liberals are more likely to subscribe to the idea of an evolving constitution, and court rulings expanding civil rights have often relied on versions of this philosophy extending the protections in the 14th Amendment.

Gay marriage has been legal in Idaho since October, when the U.S. Supreme Court declined to block lower federal court rulings saying that Idaho’s ban on gay marriage, which was passed by the state’s voters in 2006 and put in the state Constitution, was unconstitutional.

Shepherd has a history on state’s rights issues — he sponsored a bill in 2014 to declare some Environmental Protection Agency regulations unconstitutional. Another bill he is sponsoring this year, eliminating some federal regulations that affect gold suction dredges, cleared another House committee last week.

Shepherd told the House State Affairs Committee Monday that the power to define marriage should be left to the states, since the 10th Amendment reserves powers not explicitly given to the federal government to the states or the people.

“I think that’s the whole problem,” he said. “We’re getting away from the Constitution.”

The committee printed the resolution on a 12-4 party line vote, clearing the way for a hearing.

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Rep. Pete Nielsen, R-Mountain Home, agreed marriage law should be left up to the states.

“There is nowhere in this Constitution that you’ll find any reference to the word marriage,” he said.

Rep. Linden Bateman, R-Idaho Falls, said the 14th Amendment has been stretched far beyond how it was intended to be read.

“Those clauses have been used by the courts to centralize our system of government,” he said.

However, Rep. John McCrostie, D-Garden City, the only openly gay Idaho lawmaker, said “this proposed piece of legislation would stand, ultimately, to take away my marriage.”

McCrostie said the idea of “judicial activism” cuts both ways. At one point, he asked Shepherd for his take on the original intent of the three-fifths compromise — the decision to count slaves as three-fifths of a person for the purpose of apportioning U.S. House seats.

McCrostie said the U.S. Supreme Court allowed gay marriage to move forward in Idaho.

“You can call it judicial activism,” he said. “I would read it more as an interpretation of the Constitution of the United States, which is what the Supreme Court is supposed to do.”

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