The surreptitious invasion of the Judicial branch

Before entering upon the duties of his or her office, a legislator “shall,” according to Article III of the Montana Constitution, solemnly swear to faithfully support, protect and defend the constitutions of Montana and the United States of America.

Taking that oath is infinitely more than a ceremonial ritual. It’s a mandatory precondition to assuming office. It’s also, simultaneously, the making of a public promise and an affirmation of a sacred vow, to be bound, above all else, to the preservation of the public good and the faithful execution of the duties assigned by the Constitution.

Our union exists as a creation of our national and state constitutions. Constructed by the framers and then approved by a vote of the people, each of those constitutions became a social contract defining the precise terms of the agreement entered into by a free people and their government.

Unquestionably our constitutions are fragile, based, as they are, upon a voluntary and consensual agreement between the people and their government. The survival of those constitutions is dependent upon our mutual faith in each other and our confidence that our elected officials will steadfastly abide by their oath of office to protect and preserve our constitutions with fidelity.

It is plain, then, as our elected officials perform their duties, the imperatives of our constitutions and the public good must transcend and prevail, at every turn, over the stratagems of political parties. So says the Constitution and the oath of office to which our elected leaders have pledged their allegiance .

In simple terms, if the choice for an elected official comes down to choosing between the demands of one’s political party and the public good, the oath of office requires that official’s choice to fall in favor of the public good.

There is, by design, a certain dynamic tension built into our constitutions whereby the powers of government are purposely allocated to different branches. The functional division of powers between the legislative, executive and judicial branches provided for in the Constitution is the mechanism intentionally infused into our constitutions to prevent the concentration of power in any single institution, political party or branch of government.

The Montana Constitution provides very clear parameters and prohibitions concerning the separation of powers: “The power of the government of this state is divided into three distinct branches—legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

Clearly, legislators who cast their vote to remove or interfere with the authority assigned by the Constitution to the judicial branch, do thereby betray their sworn oath of office and their pledge to serve the public good.

Likewise, if legislators set about to create an entirely new and arcane layer of courts in order to precipitate the verdicts they want instead of the ones they get; or they tarnish and limit the independence of the judiciary by transforming the nonpartisan election of justices and judges into partisan political affairs, they once again repudiate and abandon the virtues of the Constitution they’ve given their word to faithfully defend.

Encroachment by the Legislature is excused and underwritten by an almost insatiable lust for power, control and authority, the securement of which, history reveals, leads inescapably to factions, autocracy and the disappearance of the constitutional order. For a democracy it’s a dangerous game to be played. We can fall apart much more quickly than we came together.

Marc Racicot is former Montana attorney general and governor.