Note: This posting is a work in progress. New links may be added. – RGN
When the Montana Supreme Court legislates from the bench, supporters claim the court is merely applying the 1972 state constitution. Opponents, particularly those hostile to the document, also sometimes ascribe the justices’ actions to the constitution.
They both are wrong.
As this post amply shows, the court is not enforcing the Montana Constitution at all. The court is rewriting it.
Some Background
The Montana Constitution was drafted by a convention in early 1972. Between March 24, when the convention adjourned, and the popular vote on June 6, there was a great statewide debate about whether the proposed constitution should be ratified. Central to the debate was the meaning of the document’s terms. Advocates and impartial observers explained these terms in speeches, broadcasts, newspaper articles, fliers, and in the official Voter Information Pamphlet. There was also a 12-page pro-constitution flyer—an elaborate production funded with federal dollars, prepared with state resources, and inserted in all the state’s daily newspapers. Although the flyer was advertised as “objective,” this was untrue: It was exclusively the production of the constitution’s advocates, and represented what they wanted the public to believe. Great Falls Tribune, 5/18/72, p. 33; Lewistown Daily News, 5/18/72, p.1 (reciting the federal grant, state university sponsorship, and the “objectivity” claim). See also here, pp. 343-344.
When interpreting constitutions, such explanations are very useful, because they tend to show what the ratifiers accepted. This is particularly so in the case of the Montana Constitution because the June 6 vote was extremely close and any change in public perceptions could have doomed its chances for ratification.*
How Advocates Presented the Constitution to the Voters
Today, there is a great deal of kerfluffle about how politically “progressive” the 1972 constitution is. But that would have been news to the average voter in the 1972 ratification election. This is because the document’s advocates uniformly presented the new constitution as moderate or “middle-of-the-road.” Skeptical? See these 1972 newspaper articles:
Big Timber Pioneer, Mar. 30, 1972, p. A1 (quoting Delegate John H. Leuthold as saying: “The result is a middle of the road document which offers less change than the liberals wanted and more changes than suited some of the conservatives”)
Gallatin County Tribune, 4/20/72, p. 3 (quoting Delegate Ben Berg as calling the constitution “middle of the road”)
Great Falls Tribune, 4/28/72, p. 17 (quoting Delegate Mae Nan Robinson [now Mae Nan Ellingson] on the document’s moderate effect)
Kalispell Interlake, 5/9/72, p. 2 (an editorial calling the document a “compromise between extremes”)
Great Falls Tribune, 5/9/72, p. 5 (a University of Montana professor labeling the environmental provisions “a conservative article”)
id., 5/7/74, p. 25 (emphasizing the lack of change in the judiciary article). See also Billings Gazette, 5/15/72, p. 9
River Press, 5/10/72, p. A7 (claiming the proposed constitution will make few changes in state government)
Billings Gazette, 5/14/72, p. 41 (law professor claims the “gains” in the executive are small)
Id., 5/18/10 (describing the environmental sections as “conservative but not ultra”)
Id., 3/28/72, p. 6 (quoting Delegate Dave Drum as calling the constitution “mainstream”)
Four Key Representations to the Voters
Regarding specific terms in the document, as the links below demonstrate, both impartial observers and the constitution’s advocates emphasized the following four points over and over again. (Note that these are only sample links, and do not reflect the fact that many of these articles were reprinted in newspapers throughout the state.)
First: The new constitution would create a wider sphere for legislative policy-making, generally without interference from courts. In the words of one commentator, “[One] continuous thread running throughout the new document is the elimination of restrictions on the legislature . . . ” Billings Gazette, 4/28/72, p. 21. Marge Brown, a prominent supporter, promoted the Constitution as a “restoration of the legislature’s rightful stature in a society that functions freely”—an “unshackled legislature” without “the nineteenth century proscriptions of state government’s ability to move in response to public needs.” Billings Gazette, 5/16/72, p. 19. The constitution’s advocates contended that the people should trust the legislature. E.g., Lewistown Daily News, 5/25/72, p. 16.
Similar representations appeared in the following articles:
Billings Gazette, 3/30/72, p.35
Helena Independent-Record, 3/23/72, p.4
Sanders County Ledger, 5/11/72, p. A2
Montana Standard, 5/21/72, p. 6
Great Falls Tribune, 5/30/72, p. 12
Kalispell Interlake, 6/4/72, p. 4.
Second: In accordance with the new constitution’s deference to the legislature, abortion policy—then, as now, a controversial issue—would be decided by the legislature rather than by the constitution or by the courts. Accordingly, during the constitutional convention, several news outlets reported that the delegates had decided to leave abortion policy to the state legislature. See, for example, Great Falls Tribune, Mar. 8, 1972, p.4. During the ratification debates, this was re-affirmed. To illustrate:
Great Falls Tribune, 3/26/72, p. 24
Gallatin County Tribune, 5/25/72, p. 3
Helena Independent Record, 6/1/72, p. 4.
Montana Standard, 5/18/72, p. 4
Incidentally, there is a mass of other evidence showing that the voters understood that the constitution would not impact abortion policy. Some of it is collected here, at pp. 67-69.
Third: The constitution’s two rights to a “clean and healthful environment” were merely directions to the legislature—they were not enforceable in court (i.e., not “self-executing”). This is one of the most commonly-made points during the ratification debates. Some environmentalists expressed disappointment that citizens would not be able to sue to enforce these rights. Billings Gazette, 4/16/72, p. 13 (“Delegates rejected, 51-44, a proposal to give citizens a greater right to sue in environmental cases.”). Even commentators who represented the environmental right in the strongest terms, spoke only of possible lawsuits against polluters, not against the legislature or the state. E.g., Great Falls Tribune, 5/28/72, p. 10.
The following articles further illustrate the understanding that the environmental rights were to be defined by the legislature rather than by the courts:
Kalispell Interlake, 5/7/72, p. 6
Billings Gazette, 3/30/72, p. 35
Id., 4/2/72, p.8
Id., 5/1/72, p. 6
Id., 5/30/72, p.11
Missoulian, 4/2/72, p.10
Id., 4/20/72, p. 5
Great Falls Tribune, 4/3/72, p. 11
Id., 5/4/72, p. 36
Montana Standard, 4/4/72, p. 10
Gallatin County Tribune, 4/13/72, p. 1
Id., 4/27/72, p. 1
Independent Record, 5/28/72, p. 2
Fourth: The constitution would be easy to amend, without inconvenient obstacles. This, also, was one of the most common representations during the ratification debates. Tom Judge, later that year elected governor, supported the constitution in part because it was easy to amend. Independent Record, 5/16/72, p. 14. The following articles feature similar representations:
Billings Gazette, 4/5/72, p. 24
Id., 4/27/72, p. 49
Id., 5/19/72, p. 52
Missoulian, 4/4/72, p. 18
Montana Standard, 4/11/72, p. 10
Great Falls Tribune, 4/26/72, p. 11
Id, 5/3/72, p. 7
Id., 5/5/72, p. 4.
Independent Record, 6/4/72, p.4
The Montana Supreme Court’s Betrayal
The Montana Supreme Court has systematically betrayed all four of these promises. The justices have greatly restricted the legislature’s flexibility. They have dictated policy on abortion and (as an extension) transgender treatment. They have dictated environmental policy. And by applying a fatuous version of one of the constitution’s clauses, they have clogged the amendment process, thereby preventing the people from overruling them.
Conclusion
In view of the court’s conduct, one can grow wistful reading some of the explanations presented to the voters. Consider, for example, these two sentences from the Independent Record’s June 4, 1972 editorial endorsing the constitution: “But let’s assume that some Legislature does abuse the revenue and finance provisions. It wouldn’t be hard to get a constitutional amendment on the ballot to correct those abuses.”
Really? Since that time, the Montana Supreme Court has struck down every effort of that kind.
So you might ask, “How does the court square its decision with all this evidence of how the ratifying electorate understood the constitution?
The answer is: The court doesn’t.
Instead, it just ignores the evidence. When the justices seek 1972 supporting material, they quote selectively from the constitutional convention transcript—a document unavailable to the Montana public when they voted on the Constitution.
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* The June 6 the vote was so close, it is questionable whether the constitution actually was ratified at all. The state supreme court adjudged it ratified without a recount and only after changing the election rules retroactively. However, this post assumes the document was properly ratified.
