On March 22, 1972, all 100 delegates to the Montana Constitutional Convention gathered at the Capitol in Helena to sign off on a new state Constitution they’d just spent months researching, debating, negotiating and writing — and which would be ratified by voters on June 6 of that year. In observance of the 50th anniversary of the delegates’ adoption of the document, Montana Free Press this week presents a series of articles exploring the state Constitution’s history, legacy, influence and future.
The 1972 convention that produced Montana’s current state Constitution was by all accounts a watershed moment in the state’s modern history.
The late 1960s and early 1970s had brought a wave of progressive energy to the state’s civic life, a zeitgeist remembered by historians Michael Malone, Richard Roeder and William Lang, writing in “Montana: A History of Two Centuries,” as expressing itself in “a new concern for preserving the environment, a renewed pride in community, and a new interest in reforming and improving society and government.” Additionally, the Butte-based Anaconda Company, the copper conglomerate that had exerted outsized influence over Montana politics for the first half of the 20th century, was in decline.
Against that backdrop, a push to replace the 1889 Constitution Montana had adopted at statehood hit a critical mass. The 19th-century document had been drafted in a convention presided over by Butte copper baron William A. Clark, who later bribed Montana legislators into naming him to a seat in the United States Senate. A 2003 analysis published in the Montana Law Review concluded the old Constitution had weakened the governor’s executive branch, dividing power between too many boards and agencies, and hamstrung the Legislature by giving it too little time to meet and debate proposed laws.
Montana voters endorsed the idea of a new constitutional convention, now widely known as the “Con-Con,” in 1970. As the state prepared for the convention, a court ruling excluded sitting legislators and other elected state officials from serving as delegates, meaning the new Constitution was drafted by people who were in many cases everyday citizens — ranchers, beekeepers, or homemakers — rather than political insiders. As they debated provisions over the course of the convention, held in the state Capitol in the winter of 1972, the 58 Democratic, 36 Republican and 6 independent delegates seated themselves alphabetically to de-emphasize their party affiliations.
Half a century later, those debates have begun to slip into history as a foundational chapter of Montana lore akin to the explorations of Lewis and Clark or Butte’s copper wars. The Constitution itself, ratified by voters on June 6, 1972, remains Montana’s foundational legal document, defining the basic structure of state government and laying out the bounds within which the state’s ever-energetic political debates play out.
In addition to being a foundational legal text, however, the Constitution is a fundamentally political one. As such, it has its share of critics. It’s been the subject of both ongoing debate and — by design — periodic revision over the full course of its 50-year history.
Rob Natelson, a former University of Montana law professor and longtime conservative activist, argues, for example, that the 1972 Constitution harmed the state economy by opening the door to more public spending and aggressive environmental regulations. The new Constitution kept the old document’s balanced budget requirement, but omitted a provision putting a constitutional cap on the state’s property tax collections.
“Following the adoption of the Constitution, there was an enormous increase in the relative size of the Montana public sector and the Montana tax burden relative to other states,” Natelson, who now works for a conservative think tank in Colorado, said in an interview this month.
As its present-day detractors note, the Constitution was adopted by a relatively narrow margin, 2,532 of approximately 230,000 votes, in a referendum that was immediately challenged before the Montana Supreme Court. Two years later, a voter initiative nixed a provision that had switched the state Legislature from biennial sessions to meeting every year, the first of more than two-dozen times the document has been amended.
Now, in Montana’s current political moment, there are signs that the 1972 Constitution may be facing a sort of midlife crisis as its reputation as one of the most progressive state constitutions in the nation runs up against the aspirations of hardline Republicans empowered by the increasingly firm control of state government Montana voters have given their party.
To its fans, the 1972 Constitution is a progressive milestone that modernized Montana’s system of government and guaranteed Montanans a sweeping list of individual and collective rights. The new Constitution barred the Legislature from working in closed sessions, centralized property tax assessment at the state level, and shifted authority for redrawing congressional and legislative districts away from the partisan Legislature to an independent redistricting commission.
The Constitution also recognized “the distinct and unique cultural heritage of the American Indians” and obligated the state to provide its citizens a free and equitable system of elementary and secondary schools. It articulates explicit rights to privacy and individual dignity, rights to observe and participate in the workings of government, and Montana’s landmark right to “a clean and healthful environment.”
“Time Magazine called it a ‘model document,’” Malone, Roeder and Lang wrote, “and the federal government prepared a special film to portray it abroad as an example of grass-roots democracy in action.”
A LIVING DOCUMENT
Among the key reforms included in the 1972 Constitution are provisions to make it easier to amend than the 1889 Constitution was — processes that in theory make it easier for Montana’s leaders and citizens to keep the Constitution in sync with the needs of the changing state.
Under the 1889 Constitution, amendment proposals and calls for new constitutional conventions could be initiated only by a two-thirds supermajority votes of both houses of the Legislature. Under the 1972 document, amendments and convention calls can also be proposed by initiative, giving advocates who’ve been stymied by legislative politics a route around institutional power if they can gather enough signatures from citizens. In both cases, proposed amendments take effect only after passing a popular vote.
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The 1972 Constitution also explicitly requires that the public get a chance to vote on holding a new Constitutional Convention at least once every 20 years. Votes to hold new conventions failed in 1990 (by a 18-82 margin) and in 2010 (by a 41-59 margin).
Evan Barrett, a longtime figure in Montana Democratic politics who produced a 2015 documentary on the 1972 Constitution, said in an interview that the amendment-by-initiative provision was a populist measure intended to make it harder for powerful economic interests to keep the state under their thumb.
“If you controlled the Legislature, as the Anaconda Company pretty much did for many decades, you controlled the Constitution,” Barrett said.
Since the 1972 Constitution’s adoption, amendments proposed by initiative have made sometimes significant changes to the state’s system of government. In addition to the 1974 initiative reverting the state to every-other-year legislative sessions, for example, a 1992 constitutional initiative saw the state adopt term limits for elected officials. Voters have, however, defeated constitutional initiatives that would have required the Legislature to reject federal funding and abolish property taxes
“Some people will say we made it too easy to amend the Constitution,” said Mae Nan Ellingson, who served as a Republican delegate at the 1972 Con-Con. “But one of the things that so undergirded the mentality of the group of people who were there was trust — trust in the legislative process, trust in the government, trust in the people’s ability to govern themselves.”
THE DEBATE OF TODAY
In part because its “Right of privacy” clause has come to play a pivotal role in Montana’s long-running debate over abortion access, aspects of the 1972 Constitution are increasingly in Montana Republicans’ rhetorical crosshairs.
The privacy right was the central basis for the Montana Supreme Court’s 1999 Armstrong ruling, which determined that “procreative autonomy” is protected under the same constitutional provision that shields Montanans from unchecked government surveillance.
Because the Armstrong ruling would likely endure even if the U.S. Supreme Court overturns its Roe v. Wade decision, it has come under increasing scrutiny from anti-abortion advocates. In ongoing litigation over abortion restrictions passed by the 2021 Legislature, the office of Republican Attorney General Austin Knudsen has argued for overturning Armstrong, saying the Montana court had invented an abortion right “from whole cloth.”
“Yes, the right to privacy is explicit in the Montana Constitution — unlike its federal counterpart — but the right to an abortion appears in neither,” Solicitor General David Dewhirst wrote in a January filing.
Some Republicans have criticized the Constitution and how it has been interpreted by the Montana Supreme Court more broadly, too.
For example, Rep. Derek Skees, a longtime Republican lawmaker from Kalispell who has repeatedly criticized the 1972 Constitution, drew headlines across the state last November when he called the document a “socialist rag” that the state needs to “throw out” in comments made to the Flathead Beacon while discussing the abortion issue.
Democrats responded to those comments with rhetoric of their own, with Montana Democratic Party Director Sheila Hogan calling Montana Republicans “lawless” in a statement that faulted top GOP officials for failing to condemn Skees’ remarks. As they try to rally their base in advance of this fall’s election, Democratic leaders are now warning about the potential for Republicans to propose unilateral constitutional amendments if the GOP picks up more seats.
“What we are facing this cycle is a supermajority that could change our right to privacy, could change our right to a clean and healthful environment, could change our right to a quality education. And that’s serious,” House Minority Leader Kim Abbott said at a March 16 press briefing.
If Republicans pick up two additional House or Senate seats in this fall’s election, the party would have the 100 votes between the two chambers it needs to put constitutional amendments before voters over Democratic opposition. Proposed amendments would need to be approved by a majority of Montana voters in a statewide referendum.
Montana Senate President Pro Tempore Jason Ellsworth, R-Hamilton, said this week that the Legislature’s Republican leadership hasn’t discussed an agenda that includes potential changes to the state Constitution in next year’s session, and stressed that any changes would be subject to voter approval in any case.
“There is no active plan in any way, shape or form to rewrite the Constitution in the state of Montana,” he said.
“You can’t just rewrite it,” he said. “You have to have the vote of the people.”
Even so, Ellingson, who is one of a handful of surviving Con-Con delegates, said in an interview this month that Skees’ “socialist rag” comment and the possibility of a GOP supermajority have her more worried about the future of the 1972 Constitution than she’s been at any point over the last half-century. She’s hoping, however, that the Constitution’s 50th anniversary gives the Montana public a chance for a renewed conversation about its specific provisions and how they reflect the changing state.
“Let’s have a discussion about what’s in here and what people value about it and what maybe they don’t value,” Ellingson said.
CRITIQUES FROM THE RIGHT
Skees said in an interview this month that he stands behind his “socialist rag” comments. While he acknowledged his language was “aggressive,” he said it was successful in drawing attention to a debate he believes the state needs to have before the next scheduled vote on holding a new constitutional convention in 2030. He’d like to see a new convention called then, he said, and a new Montana Constitution written with greater influence from conservative voices.
“I’m working hard to make sure that the next time it’s on the ballot we vote ‘yes’ and we have the right number of delegates and we control the structure of the new Con-Con,” he said.
Skees said he believes the current system gives the Montana Supreme Court too much power to block efforts to amend the Constitution, particularly conservative efforts. He said that since the 1990s, the court, which he regards as dominated by liberals, has routinely stymied efforts advanced by conservative lawmakers and initiative backers.
“Every single conservative effort, every single one of substance, has been turned over or defeated by the Supreme Court,” Skees said.
“I’m working hard to make sure that the next time it’s on the ballot we vote ‘yes’ and we have the right number of delegates and we control the structure of the new Con-Con.”
Rep. Derek Skees, R-Kalispell
He pointed as an example to CI-75, a voter initiative amendment that would have required voter approval for state or local tax increases. The amendment was narrowly approved by voters 51-49 during the 1998 election, but was then struck down by the Montana Supreme Court, which ruled that CI-75 was so broad it violated a requirement that changes to distinct parts of the Constitution be voted on as separate amendments.
Over the last 30 years, the Montana Supreme Court has also on various rationales struck down proposed amendments to eliminate the Secretary of State’s office, adopt a constitutional limit on how fast state spending can increase and recall judges by petition “for any reason.”
Among the successful constitutional amendments passed in that time include legislative term limits, a ban on real estate transfer taxes, and a state ban on gay marriage (the latter amendment, from 2004, is still technically part of the Constitution, though it was nullified by a federal court in 2014).
Natelson, who was one of CI-75’s co-sponsors, criticized the ruling against it as creating “an insane standard” that gives Montana Supreme Court justices too much power to pick and choose which amendment proposals they let move forward.
“It has given the court an absolute veto in terms of how the constitution should be changed,” he said. “Any constitutional amendment, no matter how it’s drafted, is going to affect more than one section of the Constitution.”
Jim Nelson, a retired Montana Supreme Court justice who was on the bench when the CI-75 case was decided, said the legal standard the court articulated represents a reasonable constraint on the potential for initiative-based amendments to unravel the fabric of the Constitution given that voters are typically limited in their ability to study the implications of constitutional changes.
“The framers didn’t want people being effectively able to amend whole sections of the Constitution without knowing what they were amending,” Nelson said.
Nelson also said that with conservatives in control of state government he expects to see a call for a constitutional convention put forth in the coming years — and that he hopes the public opposes it.
“I think we’ve got a wonderful Constitution. I think it’s very prescient. It guarantees at least 17 rights that are not protected under the federal Constitution. And I don’t think it ought to be changed at all,” he said.
One of the constitutional changes Skees said he’d like to see is a provision for an initiative process where citizens who collect enough signatures could convene grand juries to investigate alleged judicial misconduct. He’d also like to add explicit protections for parental rights to the Constitution, and amend “productive” into the “clean and healthful environment” clause in order to place more weight on economic concerns in debates over environmental issues.
Skees said he does like many of the state Constitution’s provisions, such as its single-subject rule, which prevents the Legislature from bundling legislation together into federal-style omnibus bills. He also supports the constitutional right to privacy, he said, though he believes it has been abused by court rulings that interpret it as providing legal protection for abortion.
“I’m not saying that we throw out the entire thing. I’m saying we modify and fix the imbalance that’s obvious,” Skees said.
CHECKS AND BALANCES
Other Montanans tend to see the pattern of court rulings against conservative proposals as a feature of the Constitution rather than a bug — evidence that the document is serving as a check on partisan power and upholding constitutional protections that help keep Montana the Last Best Place.
“One of the challenges we have had in the last roughly 20 years is people getting into the Legislature and saying, ‘Well, I want to do this,’ and they propose something that is clearly outside the bounds of what the Constitution would allow,” Barrett said.
In those situations, he argued, it’s appropriate for the courts to rein legislators in.
“It operates as a constraint on excess, on excess political power,” he said.
That judicial check on legislative power cuts in both directions on the political spectrum, he added.
“I was around when the Democrats had massive control of state government,” Barrett said. “And I will say that some of the attempts at laws were maybe excessive. Because that’s the way that power works.”
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