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MONTANA AG STEVE BULLOCK: AN ORIGINAL INTENTIONALIST OR LIVING CONSTITUTIONALIST?

 

 

By Timothy N. Baldwin, JD.
February 14, 2012
NewsWithViews.com

I am handling a civil case which deals with medical marijuana issues under Montana’s original (now overhauled) medical marijuana law passed directly by the people in 2004. You can read my original complaint and appeal brief to get the case’ context. The case is now before the Montana Supreme Court, and Montana Attorney General Steve Bullock is opposing the position of my appeal. The focus of this article is to emphasize Steve Bullock’s (who is also a candidate for Montana Governor 2012) constitutional interpretation methods and their contradictions.

Montana’s Laws Regarding Interpretation of Law

Montana sets forth rules of interpreting laws. These rules reflect what is known as Original Intentionalism, which requires the intent, meaning, and purpose of the law makers to be applied, not subjective standards of the particular judge. The rules follow:

“In the construction of a statute, the intention of the legislature is to be pursued if possible” (Section 1-2-102, MCA). “When a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted” (Section 1-2-104, MCA). Where the intention and purpose cannot be found, the courts must use an objective standard to apply the law (Section 1-2-101, MCA). These rules of construction are more important concerning the State’s attempt to punish a person who allegedly violates the law.[1]

Compare to ‘Living Constitution’

These rules for construing Montana laws contrast to the Non-Originalism, living constitution idea. For example, when considering the federal government’s power under the U.S. Constitution to force the States to permit abortions (see, Roe v. Wade), a living constitutionalist would argue: “the courts have to interpret the constitution to (a) implement justice however they see fit given the facts, (b) give effect to modern cultural notions, and (c) set new standards regarding facts not presupposed by the ratifiers of the constitution” and the like.

Were an Originalist to suggest that judges not inject their personal view of what should be constitutional but only rule what is constitutional and that if the people want to change the constitution, let them amend it; the living constitutionalist would counter-argue, saying, “that is a naïve and inconvenient rule of interpretation which allows injustice and results in rigidity; the courts have the power to make sure the constitution fits modern social values and norms; to require the people to amend the constitution upon every situation not addressed by the law makers would ruin our country” and the like.

Steve Bullock’s ‘Original Intentionalism’ Method Regarding State Law and Constitution and ‘Living Constitution’ Method Regarding Federal Law and Constitution

Ironically, Montana Attorney General Steve Bullock holds firm an Original Intentionalist view of interpreting the State laws and constitution; but when interpreting the federal constitution and tenth amendment, Bullock takes the Non-Originalism, living constitution position.

State Law Application: Original Intentionalism

In Bullock’s response to my appeal, he states as an Originalist, “If [the current laws] were insufficient to allow qualifying patients to ‘seek’ treatment, the answer would have been to seek a legislative amendment” (see Appellee Response Brief, p. 18, emphasis added). This is the very argument made by Originalist regarding the federal constitution, which is seen as too rigid by Non-Originalists.

Thus, instead of the court being able to “fill a gap” in the law to protect the natural rights of people (e.g. “right to abortion”), Bullock argues that if the law is bad, then it should be amended through political process; or instead of the court being able to interpret the statute to prevent a perceived unjust injury to a person, Bullock argues the court must strictly apply the law regardless of principles of equity or “living” notions.

However, contrast this view to Bullock’s evident view regarding the federal constitution and the tenth amendment.

Federal Law Application: Non-Original, Living Constitution

In March 2011, the federal government conducted numerous criminal raids against Montanans who were operating under Montana’s medical marijuana laws. I have conducted an extensive internet Google search for Bullock’s statements and actions in that regard. By all appearances, Bullock did nothing to protect Montana’s citizens and laws. The federal government had an open door under Bullock’s watch.

Given Bullock’s recent denouncement (using the second amendment as his basis[2]) of the federal government’s attempt to revoke the gun rights of Montanans who have medical marijuana cards, one can presume Bullock would have similarly denounced the federal raids last year (using the tenth amendment and enumerated powers as his basis) if he thought the federal government was violating the federal constitution. But he did not.[3]

By implication and compliance, Bullock agrees that the federal government has the constitutional authority to criminalize the use of a natural plant for personal use and to conduct criminal raids against Montanans operating under state law—a Non-Originalism approach to the federal constitution.


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Bullock does not respond to the federal government’s actions, saying, “If you do not like the constitution, then amend it; but you cannot claim a power that is not enumerated in the fundamental law of the land; and you will not enforce that unconstitutional law in our state.” Instead, he adopts a living constitution understanding of Congress’ commerce power on this particular subject.

Bullock’s constitutional ideology appears conflicted.

Rules of Interpretation Expected by Founders: Fears of Judicial Activism and the Federalist Response

Perhaps Bullock would argue that since Montana law prescribes the rules of construction, he must follow them; but since the federal constitution and laws do not prescribe these rules, it is left to the courts to make up their own rules. However, this argument implies either (1) the Founding Fathers and Ratifiers did not express the rules of interpretation they expected future Americans to use, or (2) Bullock does not care to consistently apply them.

The Fear

Alexander Hamilton shows what the fears of Americans were regarding judicial activism:

“‘[I]n their decisions [the judiciary] will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution’” (Federalist Paper 78).

“‘The authority of the proposed Supreme Court of the United States…will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper” (Federalist Paper 81).

The Response

Hamilton and James Madison assured America (present and future) the Constitution does not allow judges to use “living constitution” methods of interpretation and demonstrated how the Constitution would be interpreted using Original Intentionalism:

1) “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them[, as they] ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Alexander Hamilton, Federalist Paper 78.

“rights of the Constitution” – implying they are fixed and unchangeable.

2) “[The Judiciary has the duty] to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Hamilton, FP 78.

“manifest” – the expression of intent by words and signs.
“tenor” – the sense and intent of the makers.
“rights or privileges” – implying they are fixed and unchangeable.

3) “A Constitution…must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.” Hamilton, FP 78.

“fundamental law” – not subject to change or arbitrary meaning.
“ascertain” – to search for and understand according to sound rules of construction—not subjective to the judge.
“meaning” – the correct application of a word or provision to give effect to the makers.

4) “It can be of no weight to say that the courts…may substitute their own pleasure to the constitutional intentions”. Alexander Hamilton, FP 78.

“own pleasure” – judges’ subjective will is not a correct method of interpretation.
“constitutional intentions” – the intent of meaning and purpose according to the makers of the constitution.

5) “…the judges to do their duty as faithful guardians of the Constitution”. Hamilton, FP 78.

“guardians of the constitution” – to protect its meaning, essence, and purpose.

6) “The inflexible and uniform adherence to the rights of the Constitution, and of individuals…can certainly not be expected from judges who hold their offices of a temporary commission.” Hamilton, FP 78.

“inflexible and uniform” – adherence to the constitution is not subject to change or flexibility based upon subjective standards.
“rights” – implying they are fixed and unchangeable.

7) “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would be the substitution of their pleasure to that of the legislative body.”

“sense of the law” – the words and usages of the constitution must be interpreted to give effect to the intent and meaning.
“will”- meaning, subjective interpretation.
“judgment” – meaning, objective interpretation.

8) “…the propriety of the judicial power of a government [is] coextensive with its legislative…” Hamilton, FP 80.

“coextensive” – the courts have no more power to change the meaning of the constitution than the legislators.

9) “there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution”. Hamilton, FP 81.

“spirit” – the courts cannot use a subjective method of interpreting the constitution, probably meaning equitable interpretation, where the intent and meaning of the words can be found and applied to “construe the laws.”

Conclusion

The founding generation’s standards of interpretation are not unknown. We simply chose to ignore or not study them. What seems to be taking place is politicians are using certain interpretation methods to obtain whatever result they want to achieve—whatever result benefits them at the time.

If Bullock held the same federal constitutional standards as he apparently does state constitutional standards, he would have stood in the way of the federal government when they intruded Montana’s citizens, constitution, and laws in March 2011. Instead, Bullock’s actions evince his living (federal) constitution standard. What will he do if he becomes governor? Which method can we expect him to use?

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For the sake of treating people and their rights with equal respect, the top law enforcement officer of the State should interpret the State and Federal constitution and laws equally and under like principles. Otherwise, we have people being slaughtered under one interpretation of the constitution and others being protected under another interpretation. This is not just.

If a State is going to interpose against the federal government on popular matters like Obamacare and NDAA, then it should be so willing in unpopular or personally-disagreeable cases. Our personal opinion on the subject is not the issue; it is the fundamental laws of our land and rule of law. If you cannot stand for and protect all, you do not qualify to stand at all.

2012 Timothy N. Baldwin, JD - All Rights Reserved

Footnotes:

1. Section 20-1-301 [MCA]…is a penal statute and must thus be strictly construed. Missoula High School Legal Defense Ass'n v. Supt. of Pub. Instruction, 196 M 106, 637 P2d 1188, 38 St. Rep. 2164 (1981).
2. Note: Bullock is running for Montana Governor. Any such candidate would have no chance of winning in Montana if he were not a strong second amendment supporter. Thus, Bullock seems to be positioning himself as a strong second amendment rights candidate. His views on the tenth amendment, however, are not as clear, as seen in this article.
3. Bullock apparently does not hold the tenth amendment with the same respect as the second amendment.

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Timothy Baldwin is an attorney licensed to practice law in Montana (and Florida) and focuses on constitutional issues. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.

Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and Political Discussions for People of States–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political science articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.

Web site: libertydefenseleague.com

E-Mail: tim@libertydefenseleague.com


 

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Montana sets forth rules of interpreting laws. These rules reflect what is known as Original Intentionalism, which requires the intent, meaning, and purpose of the law makers to be applied, not subjective standards of the particular judge.