A state constitutional convention could restore the constitution that Montanans ratified

This is the tenth in a series explaining why, when the question is on the ballot in 2030, Montanans should vote for a new state constitutional convention. Earlier articles have listed weaknesses in the current state constitution, judicial misinterpretations, and why ordinary constitutional amendments cannot cure these problems.

Convention opponents sometimes recite, “Hands off our constitution!” This might have been good advice decades ago, but not today. Why? Because—even aside from amendments—the version the courts now apply is not the one the voters approved in 1972. The Montana Supreme Court has had its “hands” all over the constitution, and has radically altered it.

The court often treats the constitution as a purely “progressive” charter—in other words, as a document mandating certain political results. Some in the media often portray it that way, too. But that is not fully accurate.

It is true that most of the 1972 convention delegates were liberal. On the other hand, they also knew that Montanans were more conservative and would not ratify a purely left-wing charter.

So the delegates made many compromises. Accordingly, during the campaign for voter ratification, they and other advocates repeatedly portrayed the constitution as “moderate” and “middle-of-the-road” and “a compromise between extremes.”

One of the key compromises pertained to the constitution’s two environmental rights.  Some of the more radical convention delegates wanted to give judges the power to override the legislature on environmental policy. But the 1972 convention rejected this effort. Instead, the constitution’s environmental rights would be merely directions to the legislature, much like the U.S. Constitution’s “Republican Form of Government” clause. And during the 1972 ratification campaign, this is how they were represented to the voters.

Nonetheless, the Montana Supreme Court has used those rights to justify assuming a veto over state environmental policy.

Here is another illustration: When modern “defenders” of the constitution don’t like what the legislature is doing, they sue, claiming the constitution severely restricts the legislature. Since 2021, they have filed over 70 lawsuits to void democratically enacted laws.

But a core reason for adopting the 1972 constitution was to give the legislature more discretion, not less. As one advocate affirmed at the time, “[A] continuous thread running throughout the new document is the elimination of restrictions on the legislature . . . ”

Here’s another example of the difference between the constitution the voters ratified and the one imposed on them today: A major selling point for the 1972 constitution was that it would be easy to amend. A leading candidate for governor (subsequently elected) offered that as a reason he was voting for ratification. But then the state supreme court unilaterally changed the rules, rendering the constitution extraordinarily difficult to amend.

So modern “defenders” of the state constitution are not really defending the constitution but a distorted version of it. There appears to be a political rather than a constitutional agenda at work. This is confirmed by an opinion article issued by one of their groups. The authors wrap themselves in the constitution to oppose allowing judicial candidates to declare party affiliation. In fact, however, the constitution takes no stand on that subject.

The best way to defend the constitution is not to dig in one’s heels to protect an inaccurate and distorted version. The best way is to call a convention to, first, clean up drafting mistakes that tend to discredit the document, and, second, to correct judicial distortions of it.

Finally, you can find out how advocates of the Montana Constitution presented it to the voters before the original ratification vote by going to these resource sites here and here.