Law of the land 

Looking back on 30 years of the Montana Constitution

Thirty years ago, the people of Montana were not very impressed with the new constitution presented for their approval. Many thought it was too urban, too populist, too “liberal.”

Two years earlier, voters had requested a replacement for the old constitution, which had been drafted at the dawn of Montana’s statehood in 1889 at a time when copper and cattle ruled supreme and which, not surprisingly, wasn’t entirely appropriate for them anymore. So 100 elected delegates from across the state set out to craft a new guiding document. A year later, they unveiled their work, which included a handful of unprecedented and progressive items, including a firm protection of the right to privacy, the right of all Montanans to a “clean and healthful” environment, and an obligation to teach Native American heritage in all of Montana’s public schools.

Montanans accepted the proposed document, but just barely. Out of 240,000 votes cast, the margin of victory was only 3,000 or so votes. And that was only after three of its most controversial provisions—liberalization of gambling laws, a ban on the death penalty, and a proposal to have a unicameral Legislature —were removed.

Since then, Montanans have fallen in love with their constitution, as have many law scholars from around the nation. In 1990, during a constitutionally mandated vote on whether to convene a second constitutional convention, 84 percent of the electorate voiced their satisfaction with the current document. Last week, at a retrospective sponsored by the University of Montana School of Law, legal experts from around the country praised the unique elements of the constitution regarding Native Americans, privacy, and the environment.

Nevertheless, there are still “turkey feathers on the constitutional eagle,” or so said attorney Greg Petesch, director of the Legal Division of the Legislative Services Division in Helena. Petesch was one of those who spoke last week about the state of the constitution from his unique perspective as legal advisor to the state Legislature.

One of those so-called turkey feathers is the initiative process. A reasonable sounding idea, the initiative process is intended to directly empower the people. Its inclusion reflects the “populist spirit” of the document, according to state constitutional scholars Larry Elison and Fritz Snyder at the UM Law School.

Although the old constitution allowed citizens to craft new laws via the initiative process, it didn’t allow the constitution itself to be amended. The new constitution, however, reduced the required number of signatures for a lawmaking petition to get on the ballot and opened the door to constitutional amendments as well. According to Petesch, because Montanans have repeatedly tried to amend their constitution, they may be more dissatisfied with it than the 1990 vote indicated.

In fact, voters have put 25 constitutional initiatives on the ballot since 1972, an average of two per election cycle. And most of them were “turkey feathers,” said Petesch. Four measures were successful but two of those were later struck down by the Montana Supreme Court. As Petesch sees it, either the document isn’t as popular as was once commonly believed, or it’s simply too easy to change.

“The enduring legacy of the 1972 constitution may be the ease with which it can be changed,” says Petesch.

But changes in the form of voter-signed petitions are not the only challenges posed to the constitution. Petesch predicts that soon Montana’s strong open-meeting provisions—an “eagle feather,” as he sees it—will come into conflict with the federal Homeland Security program. Currently, government officials cannot convene a quorum without public notice or meet behind closed doors. The only exceptions are personnel matters when an individual’s right to privacy trumps the public’s right to know.

“Federal government officials hate to meet with state officials in Montana because anyone can sit in on them,” says Petesh. “I think it’s very likely you’re going to see an attempt to rewrite [the open-meetings laws with regard to national security].”

Open-meetings laws are not the only “eagle feathers” that may prove difficult for state officials to uphold in the future. Petesch noted that other strongly-worded provisions of the constitution have been generating headlines recently. For instance, a coalition of educators, parents and a union filed suit against the state this month alleging that inadequate funding of public schools violates the constitutional guarantee of “quality” education.

And in response to a question from the audience, Petesch noted that another section of the constitution which establishes “inalienable rights” for Montana citizens contains an inherent conflict that hasn’t been sorted out by the state Supreme Court yet. Immediately after the guarantee to a clean and healthful environment, the constitution establishes the rights to pursue “life’s basic necessities” and the right of “possessing and protecting property.” In 1999, the state Supreme Court issued a landmark pro-environmental ruling in favor the Montana Environmental Information Center regarding the Seven-Up Pete mine near Helena, but hasn’t yet considered its implications for economic or property rights.

Petesch wasn’t the only speaker to point out the “turkey feathers” on the legacy of the state constitution. Professor Raymond Cross from the UM law school, a member of a panel on state and tribal relations, criticized the state’s response to a provision that recognizes “the distinct and unique cultural heritage of the American Indians,” and commits the state “to the preservation of their cultural integrity.” In three decades, not much progress has been made on the issue, Cross said, even though House Bill 528, also known as Indian Education For All, was passed in 1999.

“It’s alarming we can give so much credit to the people of Montana when all they did was put something on paper,” Cross said. “The delegates had a vision and they expected enforcement. Isn’t it time to breathe some life into it? If we wait another 30 years, we’ll have just more frustration.”

Later, Dorothy Eck, the constitutional delegate who introduced that provision 30 years ago and who was sitting in the audience during the seminar, said she shares Cross’s frustration and his perception that passage of Indian Education For All was only a step in the right direction, not a fulfillment of the constitutional provision. Eck blamed the delay on “foot-dragging” more than outright opposition. Then she asked the panel whether a lawsuit was the solution, just as another lawsuit—Brown v. Board of Education in 1954—ended racial segregation in public schools nationwide.

Sometimes litigation is the answer, answered panel member Julie Cajune, director of Indian education for the Ronan School District. On the Flathead Indian Reservation, tribal members are a minority of the total population, and until a lawsuit established Indian-majority voting districts, none had been elected to the school board. Without Indian representation on the school board, Indian issues were not number one on the agenda.

“That would seem harsh, but it’s made an incredible difference at the school where I work,” Cajune said. “You don’t want to do things like that, but sometimes you have to.”

However, a successful lawsuit directed at one school district regarding Indian Education For All wouldn’t necessarily produce results elsewhere in the state, said Weldon. Because there are hundreds of school districts across the state, the effort to fulfill the provision should come from Helena, be funded by the Legislature and implemented by the Board of Public Education.

But that strategy, Weldon noted, was full of “political impracticalities.” After the passage of Indian Education For All, then state school superintendent Nancy Keenan, who was also a candidate for the U.S. House of Representatives, proposed spending $91,000 to fund two statewide positions. In 2002, however, that amount was cut to $43,000, enough for only one statewide position. In addition, the law wasn’t written as strongly as it should have been, said Weldon.

“The language is mushy,” Weldon said, because one of the clauses only “encourages” Montanans to learn about American Indians in a culturally responsive manner and because the clauses that require official action are vague. “These are not terribly onerous duties. There’s no stipulation that a state curriculum be developed. There’s no penalty for violating it.” Still, Professor Alan Tarr from Rutgers University and Professor Rebecca Tsosie from Arizona State University were unconditional in their praise of Montana’s constitution. Of the Rocky Mountain states that joined the union in 1889, only Montana has since revised its constitution, Tarr noted, and during a nationwide trend of constitutional revision during the 1970s, Montana led the way with adopting proactive language.

Notably, the new Montana constitution established, as Tarr pointed out, “positive rights,” such the guarantees to privacy, a healthy environment, and the basic necessities of life. By contrast, the federal constitution contains “negative rights” in that free speech, for example, cannot be abridged by the government.

In addition, the new Montana constitution set a new tone for the relations between the state and federal government. The federal constitution is considered “sacred” and not easily amended, Tarr said. The state constitution, however, was made more responsive to the public via the initiative process. Thus citizens have been able to turn to state politics to address their concerns more readily in the past three decades than in the years prior to its adoption.

As Tsosie noted, only one other state constitution in the nation specifically mentions aboriginal people at all. The Hawaii Constitution protects the rights of native Hawaiians to engage in traditional practices on lands not yet developed for other uses. In effect, it’s simply a temporary exemption from trespass charges, she said.

But the Montana Constitution, she said, is “unique and innovative” for its recognition of Indian heritage and its commitment to preserving that culture. Basically, the provision requires that the state support cultural pluralism. This suggests the state will approach Indian issues as “special rights,” she said, instead of relying on “neutral provisions” that address all citizens.

“[The state] must take into account the differences between people,” Tsosie said. “[The provision] is already being used in a broad, prescriptive sense. It’s a response to a call, even at the international level, to protect native sovereignty.”

As Tarr noted, two major constitutional reform movements are expressed in the Montana Constitution. The theory of “managerial constitutionalism” strengthened the executive branch “to promote effective action.” The delegates also removed all procedural restrictions on legislative action. However, the delegates wove constitutional populism through the document because they were leery of “a little president and a little congress.” They included, for instance, the initiative process and the 20-year mandatory constitutional review vote. Since then, Montanans have added term limits, another reflection of Montana’s populist values.

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