In State v. Hensel, the Minnesota Supreme Court held that a disorderly conduct statute was unconstitutionally overbroad because it reached conduct protected by the First Amendment to the United States Constitution. The Hensel dissent agreed that the statute was overbroad, as did the district court. Given this general concurrence regarding overbreadth, it should come as no surprise that the constitutionality of this specific disorderly conduct statute is not the most compelling aspect of this case.
Rather, the central dispute in Hensel hinged on the threshold at which a constitutionally overbroad statute’s language is “readily susceptible” to a narrowing construction. Regarding this threshold, the dissent in Hensel argued that nearly all constitutionally flawed statutes are susceptible to narrowing constructions, even where adding or deleting significant statutory language is required. Further, the Hensel dissent stressed that courts are compelled to adopt a narrowing construction if doing so will avoid invalidating a law due to constitutional overbreadth.
In contrast, the majority in Hensel concluded that the separation of powers doctrine requires genuine restrictions on judicial authority to narrowly construe legislation, reasoning that unchecked construction that effectively rewrites law steps impermissibly into the legislative domain. In Hensel, the majority could not reconcile any proposed narrowing construction with the plain meaning of the statute, finding that each construction amounted to rewriting rather than reinterpreting the law. Hence, the majority refused to adopt a narrowing construction of the statute, and the law was invalidated.
This note begins with a summary of the Hensel decision, including a synopsis of important facts and procedural history, a background of the disorderly conduct statute at issue in the case, and an examination of the Minnesota Supreme Court’s ruling. A summary of the relevant legal history and precedential context of the Hensel court’s dramatically conflicting views on the limits of narrowing construction follows. In the analysis, this note addresses the provocative chasm that separates Hensel’s intensely disparate positions on narrowing constructions. Next, this note considers how the dissent (as well as those making similar arguments for narrowing constructions that exceed the plain meaning of statutory text) relies on decisions that fail to strike a proper balance between controlling precedent and critical policy interests. Finally, the note concludes by calling into question the consequences of the fighting words doctrine, which encourages judicial rewrites of constitutionally overbroad legislative language even where such revisions require an alarming disregard for the plain meaning of statutory text.