Key Points

• American constitutional theory gave to the legislative branch both the responsibility and the power to consider whether its laws conformed to the constitution.

• Throughout American history, courts routinely held that properly enacted laws were entitled to a presumption of constitutionality unless proven unconstitutional “beyond all reasonable doubt” because such laws express the people’s will through a democratic process.

• Modern courts, including those in Montana, often express and apply standards for review of legislation which are far less deferential to the legislative branch.

Introduction

One of the features that distinguishes American society from many others, past and present, is the incorporation of declarations of rights into the state and federal constitutions limiting the powers of government to restrict individual liberty. These declarations or “bills” grew out of the Enlightenment principle that people are endowed with rights by their Creator, not by their government. Hence state constitutions often express these as “inalienable rights” because no government can legitimately deny them.

Montana adopted an innovative bill of rights in its 1972 state constitution. It contains traditionally recognized rights such as freedom of speech and assembly, as well as comparatively unique features. For example, Section 3 of the Montana bill of rights declares as “inalienable” the rights to a “clean and healthful environment,” to “pursuing life’s basic necessities,” to “enjoying their lives and liberties,” to “acquiring, possessing and protecting property,” and to “seeking their safety, health and happiness in all lawful ways.”  Section 8 declares the “public’s” right “to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.”

Although “inalienable,” the rights these sections express are conditional rather than absolute. Section 3 describes “corresponding responsibilities” of persons in the exercise of rights, and Section 8 conditions citizen participation in the “operation” and “final decision” of governmental agencies “as may be provided by law.” Thus, the full scope and meaning of these rights is subject to interpretive standards not expressed in the Constitution.

As important as Montana’s bill of rights is, it is not the entire Constitution, and it is neither more nor less important than any other part of the Constitution.  As a general declaration, it does not explain how such rights are to be defined or enforced. Rather the Constitution provides for a decision-making structure within which it confers authority to enact laws, any of which may involve restrictions on one or more rights. Article III, Section 1 divides Montana’s governmental powers into three branches – legislative, executive, and judicial. Significantly it directs that “No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

Article V of the Montana Constitution “vests” legislative power in an elected legislature. Among the legislature’s many responsibilities is the duty to enact laws which conform to the more general expressions of rights expressed in the Constitution. But because laws often restrict rights, including those declared “inalienable” by the bill of rights, the legislature must weigh those restrictions against other rights as well as desired policy outcomes. When people believe that the laws go too far in limiting their rights, they may ask courts to declare those laws invalid and unenforceable against them.

But does the “judicial power” which Article VII, Section 1 vests in state courts, empower judges to declare state laws invalid? Nothing in the Montana Constitution “expressly directs or permits” courts to nullify laws so if that power exists at all, it must be inferential and constitute an exception to the rule that one branch may not exercise any power which belongs to another branch. Plainly the judicial power to nullify laws does exist. Montana and federal courts have exercised it repeatedly. Yet in each case in which a court determines that the state or federal constitution prohibits a particular law, a conflict exists between coordinate branches of government. That leaves an important question: How can such conflicts be resolved by the courts without violating the principles of democracy, representative rule, and separation of powers?

Claims of unconstitutionality arise in every state as well as in the federal courts and have done so since the early days of the American republic. Because such claims call upon the judicial branch to invalidate the work of the legislative branch exercising its assigned constitutional powers, courts have traditionally approached the task with great caution – they assumed the challenged laws were constitutional. A person who challenged the validity of a law faced a heavy burden of proving its invalidity by a standard such as “beyond all reasonable doubt.” Judges have deemed that presumption a necessary means of preserving the people’s right to govern themselves through an elected legislature, “a right,” the Declaration of Independence had described as of “inestimable” value to the people and “formidable to tyrants only.”

The Role of the Judiciary in American History

The right to representative self-government was so deeply embedded in early American culture that many legal theorists denied the existence of any judicial power to nullify laws unless explicitly expressed in a constitution. Typical of such sentiment is the opinion of the very capable Justice[1] John Bannister Gibson of the Pennsylvania Supreme Court in 1825:

It has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the constitution. It does so: but how far? If the judiciary will inquire into anything beside the form of enactment, where shall it stop? There must be some point of limitation to such an inquiry.[2]

In the early 19^th century state judges in Rhode Island and Ohio even found themselves impeached as criminals for holding acts of the state legislature void.[3] Recently Professor Gordon Wood summarized the early doubts that the judiciary had any power to invalidate legislation:

For judges to declare laws enacted by popularly elected legislatures as unconstitutional and invalid seemed flagrantly inconsistent with free popular government.

Most Americans . . . knew only too well from their colonial experience with arbitrary and uncertain judicial determinations the dangers of allowing the judges too much discretion. All this works against permitting judges to set aside laws made by the elected representatives of the people. “This,” said a perplexed James Madison in 1788, “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.”[4]

Such reservations weren’t universal. Alexander Hamilton had written in Federalist 78 that judges as well as legislators acted as representatives of popular will.  Judicial power to declare laws invalid, he argued, does not presuppose a “superiority of the judicial to the legislative power,” but only that the will expressed in a fundamental law takes precedence over the will expressed in laws which are not fundamental.[5]

But Hamilton also acknowledged, as had Montesquieu, that judicial powers must not take on the character of legislative powers. While liberty had nothing to fear from the judiciary acting alone, it “would have everything to fear from its union” with either the legislative or executive departments.[6] A court’s substitution of its public policy choices for those of the legislature, expressed however carefully as the application of constitutional mandates, undermines both democracy and liberty. When a court invalidates laws in the name of constitutional principles, it deprives the people of legislative recourse.

While few would question the existence of a judicial power to declare acts of an elected legislature invalid, judges have frequently expressed concerns lest their efforts go too far – a court which nullifies the products of the legislative process can also overstep its own constitutional bounds. To put the issue in another way, what is the judiciary’s proper role in reviewing the validity of legislation in a representative democracy?

The emphatic answer of most American courts for most of American history was to respect the validity of laws unless shown beyond all reasonable doubt that they were truly impossible to square with the constitution. Justice Thomas Cooley, probably the 19^th century’s most influential and respected constitutional scholar, published his encyclopedic “Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union” in 1871. Cooley’s Treatise includes a detailed survey of American courts’ approach to “judicial review” of state legislation. Unsurprisingly, it begins with a cautionary observation:

It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the constitution, is not conferred upon it.[7]

The courts generally considered that such a “solemn act” as declaring a law unconstitutional required them to assume that the legislature had “deliberately disregarded” its constitutional limitations, an assumption they made only reluctantly and with hesitation:

In declaring a law unconstitutional, a court must necessarily cover the same ground which has already been covered by the legislative department in deciding upon the propriety of enacting the law, and they must indirectly overrule the decision of that co-ordinate department. The task is therefore a delicate one, and only to be entered upon with reluctance and hesitation.[8]

Among the many cases illustrating the principle of respect for legislation enacted by the people’s elected representatives, Cooley quotes Justice Bushrod Washington’s opinion in an 1827 decision of the United States Supreme Court. Any reasonable doubt about the validity of a law, wrote Justice Washington, must be resolved in favor of constitutionality as a matter of “decent respect” for the legislative body:

But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this Court when that subject has called for its decision, and I know that it expresses the honest sentiments of each and every member of this bench.[9]

Courts routinely held that properly enacted laws were entitled to a presumption of constitutionality unless proven unconstitutional “beyond all reasonable doubt” because such laws express the people’s will through a democratic process. As described by Harvard’s James Bradley Thayer, the “really momentous” question was not merely whether in the opinion of the judges a legislative act is not constitutional. Rather, a court’s duty was to inquire only whether the act’s framers have made a very clear mistake, that the legislators could not have held any rational argument in favor of constitutionality:

Having ascertained all this, yet there remains a question – the really momentous question – whether, after all, the court can disregard the Act. It cannot do this as a mere matter of course, – merely because it is concluded that upon a just and true construction the law is unconstitutional. That is precisely the significance of the rule of administration that the courts lay down. It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, – so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply, – not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it.[10]

The significance of this presumption, Thayer emphasized, was nothing less than the preservation, not only of the legislature’s power to perform its constitutional role in a representative democracy, but equally the responsibility and vitality of government itself:

Will anyone say, You are over-emphasizing this matter, and making too much turn upon the form of a phrase? No, I think not. I am aware of the danger of doing that.

No doubt our doctrine of constitutional law has had a tendency to drive out questions of justice and right, and to fill the mind of legislators with thoughts of mere legality, of what the constitution allows. And moreover, even in the matter of legality, they have felt little responsibility; if we are wrong, they say, the courts will correct it. Meantime they and the people they represent, not being thrown back on themselves, on the responsible exercise of their own prudence, moral sense, and honor, lose much of what is best in the political experience of any nation; and they are belittled, as well as demoralized. . . . The checking and cutting down of legislative power, by numerous detailed prohibitions in the constitution, cannot be accomplished without making the government petty and incompetent.[11]

As a matter of preserving the democratic character of an effective government, American constitutional theory gave to the legislative branch both the responsibility and the power to consider whether its laws conformed to the constitution. The courts observed the highest respect for the legislature’s judgment, overturning it only when its judgment was not merely wrong, but indefensibly wrong.

Conclusion and Modern Courts

Modern courts, including those in Montana, often express and apply standards for review of legislation which are far less deferential to the legislative branch. The next article in this series briefly traces the expansion of the role which courts play in examining claims that legislation is constitutionally invalid, including their use of multiple standards, reflecting the level of importance which they assign to the asserted right. A final article considers Montana’s experience with judicial review and asks whether the modern tests for constitutionality of a law it has adopted are appropriate under the 1972 Constitution.

The purpose of these articles is to ask difficult questions in a real-world context. I readily admit that because my task is self-limited, it is simpler than that of either the legislator or the appellate judge who must commit to an answer with real-life consequences. While these articles sometimes dispute a courts’ reasoning or suggest a misuse of its power, they do so for the purpose of illustrating an articulated principle, not to favor a preferred policy outcome. The questions these articles ask are difficult because the real world is difficult and inevitably the choices faced by legislators and judges are difficult. If they ask the right questions, perhaps they can contribute to a better framework for constitutional decision-making that gives appropriate respect both to the constitution and to legislation, each of which in theory reflects “the will of the people.”

Footnotes

[1] Later Chief Justice

[2] Eakin v. Raub, 12 Serg. & Rawle 330, 349 (Pa. 1825) Gibson, J., dissenting.

[3] Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union. 2nd ed. Boston: Little, Brown & Company, 1871. 160, n. 3

[4] Wood, Gordon S., Power and Liberty: Constitutionalism in the American Revolution. New York: Oxford Univ. Press, 2021. 130-31

[5] Hamilton, Alexander Federalist No. 78, in Rossiter, ed., The Federalist Papers, New York: New American Library (2003) 466. Hamilton’s reasoning is closely echoed in the only case in which his fellow Federalist John Marshall declared a federal statute unconstitutional, Marbury v. Madison, 5 US 137 (1803). Marshall more often applied a strong presumption of constitutional validity to statutes, see, eg., Fletcher v. Peck, 10 US 87, 128 (1810).

[6] Id., 465.

[7] Cooley, at 159.

[8] Cooley, at 160.

[9] Ogden v. Saunders, 25 US 213, 270 (1827).

[10] Thayer, James B., The Origin and Scope of the American Doctrine of Constitutional Law, Boston: Little, Brown, and Co. 1893. 18  Thayer’s approach to constitutional review of legislation left an unmistakable mark on the opinions of such notable justices of the United States Supreme Court as Oliver Wendell Holmes, Jr., Louis Brandeis, Benjamin Cardozo, and Felix Frankfurter, as well as on many other state and federal judges.

[11] Id., 18, 29-30