One of the few ways the people can check an overreaching judiciary is by passing constitutional amendments. At the federal level, the people reversed U.S. Supreme Court decisions through the 11th, 14th, and 26th amendments.
At the state level, the people sometimes use the citizen initiative process to curb activist judges. The citizen initiative process allows anyone to circulate a petition to put a proposal on the ballot so the people can vote on it. This prevents judicial oligarchy. It’s also a “safety valve” for popular discontent.
So alarm bells should go off when a state supreme court hijacks the amendment process itself.
Some Background
Montana once was a populist state where, in close questions, judges tended to defer to the popular will.In Montana, as elsewhere, the terms of a state constitutional amendment were fixed by the content of the proposal offered to, and approved by, the people.
The Montana Supreme Court Becomes Hyper-Activist
For several decades, however, the Montana Supreme Court has been hyper-activist. Since 1982, the tribunal has an almost unbroken record of upholding liberal ballot measures and striking down conservative ones.In November 1998, against all odds, the voters approved Constitutional Initiative 75. This was a tightly drafted measure to allow the people to vote on most tax increases. CI-75 was what scholars call a “tax and expenditure limitation” or “TEL.”
The drafters of CI-75 (of whom I was one) sought to avoid defects in other state TELs. We did so by clarifying terms and adding enforcement mechanisms. All of the terms were integral to accomplishing CI-75’s purpose. For clarity, CI-75 identified three sections of the constitution that were being changed. There was little dispute that CI-75 complied with existing law.
Of course, anyone who reads a constitution knows that nearly all amendments—even the narrowest—alter more than one part of the existing document. Some amendments, such as the Fifth and 14th in the U.S. Constitution, sprawl over multiple topics.
The Court Extends Its Power Further
In 2016, Montanans voted to add CI-116, a crime victims’ bill of rights (“Marsy’s Law"), to the state constitution. This time, the drafters were careful not to specify parts of the constitution being amended.Less plausibly, the justices added that (1) any language added to the constitution would be counted as one amendment and (2) the effect of that language would be counted as a second amendment. This rendered it impossible for any amendment to be counted just as one.
Then the court went on to say that any “substantive” changes had to be “closely related” for the measure to survive.
The Court Vetoes Property Tax Relief—and Makes a Damaging Admission
Montanans, like residents of some other Western states, face soaring property tax assessments. This year, petitioners offered a constitutional amendment to rein in property taxes.Their proposed amendment altered only one section of the state constitution. All its terms were, as the court admitted, tightly “conjoined.”
The justices held that the tax-relief measure changed several parts of the constitution. One purported reason was that it affected functions that happened to be carried out at different levels of government. Another purported reason was that it added a cap on tax hikes to its cap on property assessments.
The court said these changes weren’t “closely related.” As in the previous two cases, it didn’t matter that they were integral to carrying out the amendment’s purpose.
The Standard Changes for a Liberal Amendment
Those of us who regularly follow the Montana Supreme Court predicted that it would never apply its impossible-to-meet standards when liberal amendments were challenged.At one time, Montana was among those northern states in which the Republican Party was controlled by its “progressive” wing. Gradually, however, the Montana GOP has grown more conservative.
Their proposed amendment would alter several provisions in the Montana constitution. The provisions being changed include candidate qualifications, the Legislature’s power to regulate elections, and arguably even the free speech guarantee. (Significantly, the changes exempt Montana Supreme Court justices.)
Yet—surprise!—the court upheld this one. It claimed each constitutional change was “integral” to the whole. This was the same justification the court rejected in the prior three cases.
The story is a caution to all Americans: The courts have no business determining the content of constitutional amendments. This is the prerogative of the people. It’s a prerogative the people should guard jealously.