Rewriting history 

Ballot initiative offers chance to change constitution

When Montanans voted in favor of scrapping the state's Constitution 40 years ago, Mae Nan Ellingson was eyeing a master's degree in political science at the University of Montana. Two years later, at age 24, she found herself one of the 100 delegates from across the state elected to serve at the Montana Constitutional Convention. Her task: to help hash out a new bill of rights and government mandates, all of which would become the law of the land for years to come.

"It was pretty amazing," says Ellingson, now 63, of being the youngest delegate to serve at the convention. "I felt pretty lucky."

Ellingson took her work seriously. Prior to arriving in Helena, she says she devoted huge chunks of time studying state issues. When she and the other delegates finally arrived at the Capitol, Ellingson engaged in fierce debates, including talk of greater environmental protections and equal rights for women.

The result of those debates, Montana's current constitution, still stands.

But that could change this November when voters decide whether they want to toss out the 1972 document and draft a new one. If a majority of citizens cast their ballot in favor of initiative CC-2 on Nov. 2, the state will hold another Constitutional Convention. Voters would then elect another 100 delegates to rewrite the document from which all of our laws and rights stem.

"It will be interesting to see if the voters think that an argument has been made, or can be made, that the constitution is so broken that it doesn't work, that it needs to have a full-scale rewrite," says Ellingson, a Missoula attorney who supports leaving the constitution intact.

click to enlarge Mae Nan Ellingson helped craft the 1972 Montana Constitution, serving as the youngest delegate and one of 19 women at the convention. “It was a pretty amazing experience,” she says. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Mae Nan Ellingson helped craft the 1972 Montana Constitution, serving as the youngest delegate and one of 19 women at the convention. “It was a pretty amazing experience,” she says.

The document Ellingson helped create is a product of its era. The Montana Constitution was crafted during a time of incredible social and political flux, with the Vietnam War in full swing and voters growing increasingly mistrustful of government. At the same time, women were lobbying to achieve equal rights, and the environment was just beginning to enter political debate.

"There was this burgeoning environmental movement nationwide through the Sierra Club, and so on, where people were recognizing, 'Can anyone sue on behalf of the environment?'" Ellingson recalls. "That was sort of a big, big issue of the day, and it's one we tried to address...There was this whole shift: How can the environment be protected? Were the traditional laws on the books adequate?"

A majority of delegates agreed the laws were not adequate. In response, they penned a new provision calling for the inalienable right to a clean and healthful environment. The passage remains a cornerstone of environmental law today.

Authors of the 1972 constitution also addressed other predominant issues of the time. For instance, they mandated increased government transparency, crafted far-reaching anti-discrimination laws, and established a strong right to privacy.

Even today, the document has many admirers, including Fritz Snyder, a UM professor, director of the law library, and author of The Montana State Constitution: A Reference Guide. He says the state's 1972 constitution remains among the nation's most progressive.

"[It's] widely considered to be one of the most forward-looking state constitutions in the country," says Snyder, who also opposes CC-2.

But not everyone shares Snyder's admiration. Critics call the constitution flawed, specifically because it's full of vague and ambiguous language that invites confusion and, in turn, litigation. CC-2's proponents maintain citizens would be best served by a more clearly worded guiding document.

"It's a question of having language that everybody understands," says state Sen. Joe Balyeat, R-Bozeman, who supports CC-2.

Balyeat maintains several existing constitutional provisions provide evidence of ambiguous language. Perhaps the most prominent example, he says, comes in the same section others laud—the right to a clean and healthful environment.

"I don't necessarily see anything wrong with having environmental protections," Balyeat says. "What we are saying is that the rights are written in such a way that they invite everything going to court, where the judge decides."

Balyeat contends that citizens and their elected representatives are better equipped to make those decisions, and too much judicial discretion results in legal uncertainty. It also discourages companies from setting up shop in Montana, and hurts the economy.

"It's like putting up a 'unwelcome mat' for business," he says.

Yet scholars like Snyder say if voters approve a constitutional rewrite, Montanans risk the loss of significant protections. He also worries about the expense of holding another convention. Based on 1972 rewrite costs, Snyder estimates crafting a new constitution today would cost taxpayers more than $3.3 million.

"You can't just have a bunch of folks show up and spout ideas," he says, adding that any rewrite would be subject to another vote.

As the debate continues to play out before the November election, the Montana Law Review is dedicating its annual Honorable James R. Browning Symposium Oct. 7 and 8 to examine the existing constitution in light of contemporary issues.

Ellingson has been asked to speak during the symposium, and as part of her preparation she's been poring over transcripts of the 40-year-old debates. She was more than a little amused at what she found.

"I had sort of forgotten," she says. "I really was pretty outrageously feisty."

The Montana Law Review examines the Montana Constitution during its annual Honorable James R. Browning Symposium Oct. 7 and 8 in the UC Theatre. The event is free and open to the public. Find a full schedule at www.montanalawreview.com/id62.html

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