Consideration of this session of the Montana Legislature causes one to reflect on the importance of the solemn obligation taken by each legislator.  

They have taken an oath to uphold the U.S. Constitution and the Montana Constitution. It is presumed then, by every informed citizen of this state, that each legislator will scrutinize every piece of legislation with this solemn oath in mind.      

However, to the dismay of many, legislators have been told, and/or convinced, that courts and lawyers have already determined the constitutionality of proposed legislation. For example, proponents of HB 425, which desires to define “person” by a constitutional amendment, and opponents of SB 262, the bill to ratify the Salish and Kootenai water compact, have been aggressively attacked by lawyers and others with arguments claiming the “courts” have already decided against the positions they advocate. With a shrug and a nod to those who make this claim, legislators tacitly agree with this notion of “judicial supremacy.” 

Therefore, many legislators do not vote in application of their oath but according to someone else’s interpretation of the Constitution — usually the judicial branch of government. Much of this is due to political cover so legislators don’t have to make the tough, political decisions required of them. It is an easy way out to state that “the courts have decided” through case law. 

Sadly, few legislators vote according to the “original intent” of the documents they are sworn to uphold. Most seem to vote resigned to a “living Constitution” theory; allowing judges to determine the “evolving” meaning of the “the law of the land.” Moreover it is not unusual to hear legislators “predicting” what the courts will decide due to case law. 

Behind this idea is the dangerous myth of the Marbury vs. Madison decision in 1803. From this decision came two principles. One is true. The other is legal fiction.  

Chief Justice John Marshall, in the Marbury decision, correctly stated the court had the right to judicial review and to issue rulings according to its belief that a statute passed by the legislative branch is unconstitutional. In fact, Alexander Hamilton in Federalist No. 78 had already stated this. Furthermore, Hamilton argues, in Federalist No. 78 & 81, the judiciary is the weakest of the three branches in that the courts cannot “support its usurpations by force.” There is a reason why decisions of the courts are called “opinions.” 

The legal fiction is that Marshall also stated “judicial supremacy.” He did not. So the myth of Marbury vs. Madison is that the courts are the exclusive and final arbiters of the constitutionality of laws and actions.  In all events, this false presumption that legislation must conform to judges’ opinions throws the balanced structure of co-equal branches off kilter, making our government shaky at best and downright dangerous at worst. The result: a “judicial oligarchy,” where freedom wanes and prosperity fails.

As a simple matter of wisdom, understanding there is “safety in a multitude of counselors,” legislators certainly should consider the opinions of the courts. Acquiesce to them when they disagree on constitutional questions? Not at all. As a co-equal and coordinate branch of government, legislators have every right, even a duty, to “ignore” decisions of the courts when necessary. For looking at an opinion is also to look at the fallibility of men. 

As the courts are a reasonable check on the legislative branch of government, so the legislature is a reasonable check on the opinions of the courts. This is what the founders wanted. Therefore, legislators should all apply their solemn oath to themselves, independent of judicial rulings and the executive.

Jore, of Ronan, is a former state representative, and Redfern, is a Missoula paralegal.