A new Montana Constitutional Convention?

In less than five years, Montana voters will decide whether to have a convention to propose either an updated state constitution or amendments to the existing one.

This will be a momentous decision, so it is not too early to begin public discussion now. Moreover, Montanans are entitled to hear all sides of the issue: All too often, opinion makers have celebrated the existing state constitution without admitting that it has flaws.

This is the first in a series of articles that will discuss those flaws—while still acknowledging the document’s strengths.

One clue that the constitution needs updating is the number of times the voters have amended it. It became effective in 1972, and in the ensuing 53 years, the voters have changed it an astonishing 38 times. The number would be even higher, except that the state supreme court has overturned some of the voter-approved amendments, including an important tax limitation amendment.

By contrast, the U.S. Constitution has been amended only 17 times since the adoption of the Bill of Rights in 1791. The Illinois constitution—two years older than Montana’s charter—has been amended 15 times.

If someone tells you that the Montana constitution is just fine, you might respond by asking why so many amendments have been necessary.

Other Problems

There are other issues, too—all of which will be covered in future columns. Here is a glimpse ahead:

• The constitution was advertised as “populist,” but in some ways, it actually shifted power away from the people and toward the bureaucracy and the courts. Eminently reasonable decisions made through the democratic process often are blocked by courts and bureaucrats using poorly drafted sections of the state constitution. The courts even used the state constitution to prevent the legislature from moving the voter registration deadline back by a single day!
  

• The courts have applied some parts of the document very differently from how they were presented to the voters. In other states, a constitutional amendment is a viable remedy for this. But in Montana, the state supreme court has made corrective amendments almost impossible.
  

• Much of the document is well written, but important parts are ambiguous, otherwise vague, or even contradictory. I’ll discuss examples in subsequent articles in this series.
  

• At least one provision violates the U.S. Constitution (the “non-sectarian” clause) and was struck down by the U.S. Supreme Court.
  

• Ideas considered “enlightened and progressive” in 1972—and therefore inserted in the constitution—have been discredited by later practical experience.
  

• Montanans have faced repeated controversies over property taxation and other forms of taxation, partly because the constitution lacks financial safeguards that appear in other state charters.

Doubtful Ratification

There is also the uncomfortable fact that the 1972 constitution may not have been validly ratified, because of the way the election was held and because the number of “yes” votes fell short of what was required. Although the state supreme court upheld the ratification by a bare 3-2 majority, serious questions about the entire procedure remain. I’ll discuss this in detail in a later column.

Justifiably or not, the 1972 constitution’s ratification is under a cloud. Montanans are entitled to a constitution that everyone can be proud of, and that was ratified without controversy.

Finally, if Montanans do summon a convention, it will have no power other than proposing either amendments or a new document to the voters. Nothing changes unless the voters approve. Don’t let anyone tell you differently.