Better Unconstitutional Today than Bad Precedent Tomorrow
One of the many justifications for judicial restraint, which its apologists have offered since the early days of the United States, is that constitutions must be allowed to breathe and adapt over time. Otherwise the words of yesterday will tie down legislative and executive powers needed for today. Some of these excuses concern constitutional language that “hasn’t kept pace with the times,” i.e., language those making the excuse think should be amended but, because they lack the political power to make the amendment, want reinterpreted instead. These kinds of arguments are best known as espousing a “living constitution.”
But you see the flip side of this argument as well. Similar excuses have been made early in the life of a constitution or amendment. This line of thought doesn’t want to overly restrict governmental powers earlier in the life of a constitution but instead let the language play out within the political branches. Otherwise, goes the argument, the constitution can be strangled in its crib. A notorious example of this is Justice Miller’s opinion in The Slaughterhouse Cases, where much of Section 1 of the Fourteenth Amendment was cast aside in favor of allowing the states to continue to violate their citizens privileges or immunities as before—which actually did strangle the Privileges or Immunities Clause in its crib. Another well-known example from relatively early in the U.S. Constitution’s history is Chief Justice John Marshall’s opinion in McCulloch v. Maryland(1819), where he reasoned that the Constitution’s grant of powers to Congress must be read broadly so that the young Republic could utilize its own bank without worrying too much about the strict meaning of the actual power-granting words.
Recently, I’ve stumbled across a case that takes the opposite approach. Here, the court read a new constitution’s powers narrowly so that the constitution’s drafters’ attempt to constrain the government not be cast aside for the sake of expediency. Imagine that!
Constitutional bets
The case arose from a desire to limit faro games. No, it has nothing to do with the Faroe Islands. (To be honest, I had no idea what “faro” was either, but a bit of online research tells me it was a card game a bit like blackjack. Players bet against a “banker” (dealer) and tried to play cards higher than his.) Faro was a popular gambling game in the nineteenth century that later lost out to poker. But it was popular enough to draw the eye of the Montana legislature in the late 1880s and early 1890s.
Montana drafted its (then) constitution concurrent with attaining statehood in 1889. Even before then, as a territory, it had regulated gambling. It seems faro games were allowed under certain conditions and licenses at the time of statehood and thereafter. But in 1895 the legislature updated its Penal Code with language that completely prohibited faro (and other gambling more generally). Or, that’s what the state authorities claimed. And they claimed it while prosecuting a certain Mr. Mitchell for running an illegal faro game.
However, Mr. Mitchell and his lawyers were ready. His case went to a jury but it didn’t really matter—the trial judge directed a not guilty verdict because the law he was charged under was unconstitutional. From that ruling the state appealed to the Montana Supreme Court.
You might be thinking that Mr. Mitchell’s argument was that he had a fundamental right to run his business as he saw fit, and if that meant hosting gambling in his establishment then it was no business of the state’s. Well, perhaps under principles of natural justice that’s a defensible argument to make. But it’s not one that would have gone very far, even in 1890s Montana. Governments of the time, just like today, regulated gambling in a myriad of ways and those restrictions were generally considered within the states’ police powers. No, Mr. Mitchell was much more tactical than that.
His argument was that the actual statute that had banned faro lacked the right title. Article V, Section 25 of the 1889 Constitution stated “No law shall be revised or amended, or the provisions thereof extended by reference to its title only . . .” And Section 23 required most bills to refer to a single subject, and that subject “shall be clearly expressed in its title.” The legislation Mr. Mitchell was prosecuted under was passed at about the same time as a number of other changes to the Penal Code, which confusingly referred to each other even though some of the bills had not yet passed and others had been repealed. In the midst of this, the bill banning gambling simply referred to other legislation, without anything in the title indicating what it was actually trying to do. He argued this violated these strictures in the constitution.
Many courts today might think these arguments are overly technical. “Single subject rules” are found in many state constitutions and although they do sometimes lead to the invalidation of legislation courts generally give legislatures a very long leash in squeezing what anyone else would classify as multiple subjects into them. Titling requirements seem even more technical to modern eyes.
Getting it right early on
And yet, on this occasion, in State v. Mitchell,the court enforced these “technicalities,” affirming Mr. Mitchell’s directed verdict. The title was so ambiguous, and therefore in violation of the Constitution, that it was “too plain to require comment.”
But why enforce these technical rules when it appeared the legislature truly did want to ban gambling—something Mr. Mitchell did not contest. Isn’t this ruling standing in the way of “democracy”? After all, as Chief Justice Marshall might say, “It is a constitution we are expounding.”
To this the court had an interesting response. The law violated “constitutional commands” and the court has a duty to say as much. Further:
It were far better at this time, in the early history of this new state, that a legislative act be declared invalid than that precedent be set by which plain provisions of the constitution may be nullified by loose and questionable interpretations of our fundamental law.
The court explained that at this early time in the state’s history, when its constitution is being interpreted for the first time, it should err on the side of invalidating legislation instead of deferring to the legislature. Otherwise, it would create “loose and questionable” precedent that would allow the constitution to be ignored even more in the future.
This seems to be the opposite of the motivations behind McCulloch and Slaughterhouse, where courts defer to the government in initial interpretations of constitutional language because in “expounding” it courts shouldn’t be too restrictive. Instead, it recognizes constitutions are carefully written in order to restrict what the government can do. (To be sure, constitutions provide the government powers as well, but that’s the easy part—restrictions on those powers are obviously deliberate.) Why have an overly technical requirement for how titles of bills should be written if its drafters weren’t worried about legislatures passing prolix laws? If Montana’s constitution was supposed to just let democracy do its thing, a titling law or single-subject rule might seem beside the point. Starting a constitution’s interpretation off by invalidating laws, in contrast, lets the legislature know it has to pay attention to the rules, incentivizing more constitutional government going forward.
Sadly, it seems Mitchell has hardly ever been cited for these propositions. But it should. It makes for interesting consideration not just in contrast to the above cases like McCulloch, but in the debate over “liquidation” of constitutional provisions. The argument for liquidation, essentially, is that the meaning of some constitutional language isn’t clear when first adopted but can be created through debate and implementation going forward (at least under certain conditions). The logic of Mitchell might counsel for giving less deference to the political branches during that liquidation period, as the precedent that deference creates then has a cascading effect in favor of “loose and questionable interpretations.” Of course, the opposite can be argued: that ruling laws unconstitutional cuts off the political branches from continuing to experiment and find their own answers to constitutional meaning. But Mitchell’s message is that that experimentation likely runs in one direction—greater governmental power.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.