Charles Hamilton Houston and the Montana environment case

Charles Hamilton Houston is the legal genius and absolute giant of the current USA constitutional order whom you are least likely to know — unless you’re Black. And even then, maybe not unless you’re a lawyer.

Born in the late 19th century, Howard lived about eight and a half months of his life before Plessy v. Fergusson declared “separate but equal” Jim Crow laws constitutionally sound. He would die before that changed, but he was the first one to see that change, the shape of it, the mechanism of it, the inevitability of it.

He became an attorney and co-founded the Washington Bar Association (an affiliate of the still-new National Bar Association) when the American Bar would not admit Black lawyers. Recruited to Howard University, he became the Vice Dean of the school, as well as Dean of its law school. With so few law schools open to Black students at the time, his bios describe him as directly teaching or mentoring up to one quarter of American Black law students during his Howard years.

In addition to his teaching, however, he was an activist. His particular genius was in seeing the judiciary as made up of flawed human beings and playing to human judges while arguing the law.

When he set out to overturn the doctrine of separate but equal, he knew he could not mount a frontal attack. Rather he predicated his arguments on Plessy; its own internal flaws would eventually bring it down, and Houston was content to portray himself as non-threatening while they did. Rather than argue overtly that Plessy must be struck — at least in early cases — Houston argued instead that Plessy was good law that must be actively applied. While that seems a contrary thing for a Black lawyer to argue, he knew differently.

Initial use of Plessy was as a club wielded by whites against Black equality. But Houston saw how this use focussed on separateness to the exclusion of equality. As a result, he set up the case of Missouri ex rel Gaines v. Canada. In this case he took the state of Missouri to task for having a segregated, whites-only law school and… no law school at all for Black students. While one might trust whites to rationalize terrible facilities given to Black students as all they deserve, it was impossible to (honestly) argue that nothing was equal to something.

Houston, then, backed white racist judges into a corner. They had always valued Plessyfor its ability to keep Black folk separate, but they valued themselves as an honest intellectual elite. Indeed, this was part of what made whites better to the racist mind. To discard the promise of equality in Plessy would be to accuse themselves of never having been honest about the nature of the case and its precedent in the first place. In order to preserve the honour that, they believed, made them better than Black Americans, they were goaded into following their own law. Missouri could not enforce “separate” without also enforcing “equal”. In order to cling to the sense of superiority which justified white racism, Houston forced judges to hand him the tools with which he and his protégés (notably Thurgood Marshall) would dismantle its legal enforcement.

I would enjoy writing a longer essay about Houston and the line of cases leading up to Brown v. Board of Education (Topeka, Kansas), et. al. but this is not that post. Instead, I want to set up ex rel Gaines as a comparison to Rikki Held, et. al. v State of Montana. This latter case was a suit brought by a number of Montana children seeking to enforce the Montana constitution’s environment clause, which reads like so:

Art 9, s 1:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

Emphasis mine.

In our modern times, conservative jurists absolutely love to blither and blather about their textualism and their fealty to principles. Conservatives are loyal to the clear text of state and federal constitutions, even when this is inconvenient for their policies, they insist. It is the activist left who would ignore plain language in favour of outcome, they would like you to believe.

Unfortunately for the left, this isn’t true, but in the federal constitution there is a great deal of silence on issues of import to liberals. While we can and should deride the mendacious conservatives of SCOTUS for inventing new doctrines contrary to their beloved originalism and shoehorning them into any silent crevice in constitutional law, the Montana environment clause is, like Plessy, extraordinarily and uncomfortably clear. For the conservatives to maintain the myth of honour they sell themselves in the mirror each morning, they must occasionally pay a small price. The outcome in Held is one of the largest such payments, but it was mandated by their narcissistic, self-laudatory conception of their own goodness.

If they were able to see where this all will lead, the trial court judge might have ruled otherwise. Indeed the appellate courts in Montana still might. But as Houston forced the judiciary to agree in ex rel Gaines that for “separate” to have teeth, “equal” must also have teeth or else white judges had always been dishonest, counsel for Held, et. al. forces conservative judges to agree that text as clear as Montana’s environment clause must have teeth or textualism — and more importantly, textualists — have no honour and have never been honest.

Just as in ex rel Gaines, the victory here is minimal. Houston won a promise that Missouri would eventually set up a separate law school for Black and indigenous law students, Held and her co-plaintiffs have won only the modest victory Montana may no longer ban environmental impact statements’ discussion of climate change and the roles of molecules such as carbon dioxide, methane, and hydrocarbon chains.

But while the instant victory is minimal, the precedent is vastly important. Houston forced white judges to grant power to the promise of equality. Held’s lawyers are forcing conservative — not to say white again — judges to grant power to the promise of “a clean and healthful environment”.

In the 1930s any knowledgeable observer could predict that Jim Crow must eventually fall before its own most powerful precedent because the entire point of separateness was the promise to whites that they would be treated better than Black persons. Separate but equal was a lie the whole time, but it required the cooperation of a hostile judiciary to expose. Houston’s genius was taking white racists at their word and forcing them to choose what was more important, Jim Crow, or their own heroic self-conceptions. Ex rel Gaines was the lever which he used to separate the Jim Crow laws from their white defender’s egos.

It would be easy to focus on the limits of yesterday’s victory in Held, but by forcing Montana’s courts to recognize that the environment clause is as much text, and therefore as enforceable as any other element of the state constitution, Nikki Held’s lawyers have created the lever with which the conservative attachment to fossil fuels can be pried apart from their devotion to textualism and the self-aggrandizing ego kick it provides.

There are important differences here, of course. The largest is that this is a state decision, and most states do not have a similar guarantee. There is also reason for concern if we intended to rely only on the courts. After all, from Gaines to Brown took 16 years. Surely some of us will not live another 16 years; Houston himself never saw Brown, having lived only 12 more years after Gaines.

But for me, I see great promise in this approach. And if nothing else, it provides an important opportunity to talk about one of my favourite lawyers and how he showed that the secret humanity of judges we tend to mythologize as objective can work in the favour of a clever advocate.

Charles Hamilton Houston and the Montana environment case


  1. Pierce R. Butler says

    The state and each person shall maintain and improve a clean and healthful environment …

    While I would cheer myself hoarse for Rikki Held et alia if it would help them one iota, I have to wonder about this provision in the Montana constitution. Placing a pro-active responsibility on individuals as such (as compared to, say, public office-holders) in itself goes well beyond the US Constitution; making it so broad also violates what I thought were legal precepts about clarity and specificity.

    If I, hypothetically, tossed an apple core on a rural roadside when riding through Montana yoicks ago, did I commit a constitutional crime? What if it had been on a city street? How does anyone in Montana know?

    Given my wicked socialist, woke, and otherwise deplorable tendencies, given a chance to write a Constitution for ${place} I might well include such clauses – but not yet having, somehow, received such opportunity or authority, I can only wonder how The Big Sky State wrote such language into its core legal document and why freedom-loving coal-rolling RedWhiteNBlue Patriots haven’t replaced it with polluter empowerment like God and George Washington clearly intended.

  2. eastexsteve says

    Great essay. I hate to admit that I until I read it I hadn’t heard of him. That shouldn’t be possible considering who he is and what he accomplished. Now I know he’s “The man who killed Jim Crow.” Looking into him a little more I found this quote: “The hate and scorn showered on us Negro officers by our fellow Americans convinced me that there was no sense in my dying for a world ruled by them. I made up my mind that if I got through this war I would study law and use my time fighting for men who could not strike back.” He certainly did that! Thanks for introducing me.

  3. says

    I can only wonder how The Big Sky State wrote such language into its core legal document

    If I remember correctly (and I am not an expert on Montana’s constitution, but a while back I read about this provision when the case first attracted media attention), it was a citizen proposed amendment back in the 60s or 70s and likely reflects the hippy optimism and “we’re all in this together” feeling of those times.

    Okay, just double checked to make sure I wasn’t passing on bullshit. I was correct. It’s the result of a citizen initiative to amend the state constitution and was either voted on or put into effect (or both) in 1972.

    As for the duties imposed on individuals, remember paragraph 2 reads:
    (2) The legislature shall provide for the administration and enforcement of this duty.

    I expect, though I don’t know for sure, that this amendment, written this way, was seen as authorizing the legislature to pass environmental laws that it may previously have struggled to pass or struggled to defend in court. Again, I’m not a historian of the Montana constitution, but I know that when environmental laws were first enacted in the USA they faced tests from pro-business/anti-environment types who argued that there was a limit to the laws a legislature could pass to protect the environment if such laws placed duties on persons other than the government.

    Seen that way, the constitution wouldn’t prohibit littering, but it would authorize the state to pass laws against littering.

    Anyway, I think that’s only a likely justification for crafting the amendment in this way. I would have to do some research to know for sure.

  4. Pierce R. Butler says

    …it was a citizen proposed amendment back in the 60s or 70s and likely reflects the hippy optimism and “we’re all in this together” feeling of those times.

    I don’t remember much feeling of that sort then (or since), except in small enclaves, but kudos to Montana for voting that in and keeping it! (And double-kudos to the kids making such good use of it!)

  5. Pierce R. Butler says

    Found an interesting, lay-oriented, link-rich overview at

    Pennsylvania, Montana, Hawaii, Massachusetts and Illinois all amended their state constitutions during the environmental movement of the 1970s to recognize the people’s right to a clean and healthful environment. ….

    Early cases in Pennsylvania and Illinois testing these newly recognized constitutional rights saw little success. By the 1990s, the Illinois Supreme Court had eviscerated Illinois’ green amendment…

    In 1999, however, when green amendments were all but forgotten, a single case in Montana quietly vindicated Montanans’ constitutional right to a clean and healthful environment. …

    The next green amendment success took 14 years and occurred in Pennsylvania. … In 2022, New York became the first state since the 1970s to adopt a green amendment. Currently, Arizona, Connecticut, Iowa, Kentucky, Maine, Nevada, New Jersey, New Mexico, Tennessee, Texas, Vermont, Washington, and West Virginia are considering adopting green amendments. …

    A spokeswoman for Montana’s attorney general said the state plans to appeal Seeley’s ruling. …

  6. jenorafeuer says

    One of the things about the 1970s environmental movement… acid rain was a major thing, and i was doing very real damage to very real buildings owned by the big business sorts, since limestone reacts very badly to an acidic environment; statues, gravestones, and a number of older buildings had very obvious damage.

    (The EPA was created in 1970 by Richard Nixon. I very much doubt Nixon was much of an environmentalist himself, but he definitely knew how to ‘read the room’, and pollution was a hot button topic.)

    In a sense, I think the environmental movement has suffered some of the same issues as with food inspections or vaccinations… the work generations ago went so well that we now have a large number of active voters who were never around to see the problems that these regulations solved, making them easier to convince that the regulations are ‘unnecessary’.

  7. Pierce R. Butler says

    jenorafeuer @ # 6: … acid rain was a major thing, and … was doing very real damage …

    Near the peak of that, a low-pH shower scoured the paint off a whole shipload of new Mercedes-Benzes just offloaded from a ship in the port of Jacksonville, Florida. (Not all of it, but enough that each car needed stripping and repainting.) The M-B company vowed to transport its products to anywhere but Jax, and the state legislature finally scrambled to Do Something about (that kind of) air pollution.

    [Insert big sardonic grin emoji here.]

  8. jenorafeuer says

    Pierce R. Butler @#7:
    I grew up in that era. Mad Magazine was making acid rain jokes, so you know it was a significant thing in the public consciousness of the time.

    But yes, as you point out, pollution is treated as an ‘externality’… a cost accrued by someone else. And it usually is… right up to the point where it isn’t anymore, and it starts affecting the bottom line of the people making the mess, and if we’re lucky that’s not too late to deal with the problem.

    Acid rain was dealt with at the time, and dealt with so well that people no longer think about the damage and are back into ‘what have the Romans(EPA) ever done for us?!’ territory.

    “Those who cannot remember the past are condemned to repeat it”, indeed…

  9. rod field says

    Also Montana had issues with Anaconda copper among other issues. I won’t get to specifics but “google” big pit and Butte MT if you are curious.

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