Montana Viewpoint: Beware of legislators deciding constitutionality on their own
I had a neighbor once who spent several days in the county jail because he wouldn’t make his mortgage payments. He felt he had a constitutional right to not pay them because the money wasn’t backed by gold.
There’s a longer story there, of course, and he wasn’t in jail because he didn’t pay the mortgage but because of an ensuing confrontation with a SWAT team when they came to enforce his eviction notice.
People get up in arms because of laws they believe are unconstitutional and they think they don’t have to obey. In my neck of the woods, laws that some people believed to be unconstitutional were being required to have a driver’s license, which they believed violated their “constitutional right to travel,” or having to wear seat belts, which violated some constitutional right or other.
There are two conflicting ways to decide if a law is unconstitutional, one is because it has been ruled unconstitutional by a court of law and the other is because you don’t like it. I recommend the first way as far as keeping out of legal jeopardy is concerned. If you don’t like a law, take it to court and find out for sure, because a law is considered constitutional until a judge says it isn’t.
It’s not just citizens who have trouble understanding the constitutionality of a law, the people who write our laws share the same problem.
Two of the most important jobs in the world require no prior experience, one is being a parent and the other is being a legislator. Most newly elected state legislators bring no legal training to the job, but they do bring opinions and sometimes those opinions are about what’s constitutional and what’s not.
Their opinions often wind up as a bill hoping to become a law. When a bill might conflict with the Montana or United States Constitution, a Legal Review Note is created by the Legislature’s legal staff to bring the issue to the legislature’s attention.
These used to be attached to the bill, but a couple of years ago it was decided that, although they were public documents, they would not be made public unless someone asked to see them. Two examples from the last Legislative session are Senate Bill (SB) 371 and House Bill (HB) 570.
SB 371 would have voided the Water Compact with the Flathead Indian Reservation, which was signed into law January 27, 2020, by President Trump. Because the Compact is now federal law, the Legal Review found that it could be in conflict with the Supremacy Clause, The Contract Clause, and the Compact Clause of the U. S. Constitution.
The Supremacy Clause holds that if a state law conflicts with a federal law, the federal law prevails. The sponsor asked that the bill not be heard.
Likewise, HB 570 which, would have set up a Legislative Committee to recommend federal laws that the Legislature should nullify. The Legal Review Note pointed out that under the Supremacy Clause states cannot nullify federal laws.
States don’t enforce federal laws; state and local law enforcement do not have the legal ability to do that unless specifically granted by a federal law, but states cannot prohibit or interfere with federal officers’ enforcement of federal laws. That bill was narrowly defeated in the House.
Laws are enforced by officers from the state Attorney General down to the city police officer. They do not get to pick and choose which laws to enforce and which to not enforce. There are, however, those who have pledged to not enforce laws which they believe are unconstitutional even though no court has said they are unconstitutional.
That would mean that some law would be enforced in one jurisdiction but not another. We can’t do it that way. Laws have to be enforced equally across jurisdictions for equal protection of the citizens.
We have a system of laws and rules that we abide by. It’s not a perfect system, but it’s better than no system at all, which is called anarchy. If you want a taste of anarchy, a visit to Afghanistan would be a good way to get it.
Montana Viewpoint has appeared in weekly and online newspapers across Montana for over 25 years. Jim Elliott served sixteen years in the Montana Legislature as a state representative and state senator. He lives on his ranch in Trout Creek.