SJ 15

     SJ 15 asserts that each branch of government has “a co-equal responsibility under oath to interpret and maintain fidelity to the constitution,” that no single branch has exclusive power to bind its decisions on another branch of government, and that the 1803 case of Marbury v. Madison does not state or assert that it is the exclusive role of the judicial branch to say what the law is or that their decisions are final and binding on other branches of government. I voted against this resolution because I disagree with its assertions. If accepted, the assertions made in this resolution would not only adversely affect the fundamental principle of the separation of powers but would throw our whole system of government in disarray and make it even more dysfunctional and conflict-ridden than it already is. 

     Under our system of separation of powers, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. Both the U.S. and Montana constitutions call these different roles the “legislative power,” the “executive power,” and the “judicial power,” respectively. Both constitutions vest the judicial power only in the judicial branch. Because the interpretation of a constitution and the determination of the constitutionality of laws are exercises of the judicial power, the judicial branch is the final arbiter of what the constitution means. This power of judicial review is vested in both federal and state courts.

     Although the U.S. Constitution does not expressly grant the judicial branch with the power of judicial review, it vests the “judicial power” in the U.S. Supreme Court and other federal courts. This judicial power extends to all cases arising “under this Constitution,” U.S. laws, and treaties. Several places in the Federalist Papers (most notably in Federalist No. 78), the Framers mention that the judicial power of the federal courts includes the power of judicial review, which is the power to decide the constitutionality of a law and to declare it void if found to be unconstitutional. In the 1803 case of Marbury v. Madison, the Supreme Court established the principle of judicial review in the United States. The Court stated that constitutions form “the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” The Court then stated that “It is emphatically the province and duty of the judicial department to say what the law is.” The decision on the constitutionality of a law “is of the very essence of judicial duty.” Today, it is widely accepted that the federal courts, with the Supreme Court as the final decision-maker, have the power to examine federal legislation, executive agency rules, and state laws, to decide their constitutionality, and to strike them down as void if found unconstitutional. These decisions are considered binding on all three branches of government. 

     The resolution states that this widely accepted view of Marbury v. Madison’s impact is “a myth and is not … a correct interpretation of Marbury v. Madison” because the decision “never says that determining the constitutionality of a statute is the ‘exclusive’ province of the judicial branch” and “never says that decisions of the courts ‘were final and binding upon the other two branches of government.’” If the resolution had quoted the most famous and most frequently quoted line of the opinion – “It is emphatically the province and duty of the judicial department to say what the law is” – it would have proven that determining the constitutionality of a statute is the “exclusive” province of the judicial branch. And, because the Constitution does not vest the executive or legislative branches with any judicial power, the power of judicial review is exclusive to the judicial branch. Like “exclusive,” the words “final and binding” do not have to be in the decision to make it so. The Marbury decision confirms what is expressed and implied in the Constitution: judicial power is vested exclusively in the judicial branch whose decisions on what the law is are binding on other branches of government and the decisions of the Supreme Court, the highest court in the judicial branch, are final.

     Contrary to the resolution, the oath to “support, protect, and defend the constitution of the United States and the constitution of the State of Montana” does not give each branch “co-equal duty” to “interpret” these two constitutions. It may give each branch the co-equal duty “to maintain fidelity” to the constitutions, but “support, protect, and defend” does not mean “interpret.”

     If the resolution’s assertion that it is the equal responsibility of the three branches to interpret the constitution is accepted and followed, there would be no common understanding on how to govern. There would be many competing interpretations of the relevant constitutional passages in any conflict or dispute between the branches. It would cause chaos and throw our whole system of government in disarray. And it would make the oath meaningless because everybody would have their own interpretation of the constitution that they had sworn to support, protect, and defend.