Buttressing the Montana Constitution’s protection for property rights

The 2030 vote on whether to hold a new Montana constitutional convention may seem far away. But discussion of such a momentous issue should begin now.

This is the seventh in my series on why Montanans should vote for a new convention. This installment focuses on the natural right we all have to own and use property.

A plethora of research has found that economic prosperity depends on secure property rights. The insecurity of property rights was one reason Montana lagged economically for so long. Moreover, property owners serve as a necessary counterbalance to government power. And protecting the benefits people earn is simple justice.

The Montana Constitution’s treatment of property has a few weaknesses. For example, it fixes no limit on how high state or local governments may raise property taxes.

In general, however, the constitution handles the issue well. Section 3 in the Bill of Rights (Article II) declares that “All persons are born free and have certain inalienable rights. They include . . . acquiring, possessing and protecting property . . . ” Section 12 recognizes the right to keep and bear arms in defense of one’s home, person, and property. Section 16 declares that courts of justice shall be open to remedy injuries to property.

Section 17 follows the U.S. Constitution’s Fifth and Fourteenth Amendments by stating that “No person shall be deprived of life, liberty, or property without due process of law.” And like the Fifth Amendment, Section 29 ensures that when the government seizes property, the owner is compensated. Indeed, Section 29 goes beyond the Fifth Amendment by requiring compensation when the government merely damages property.

But in this area of property rights, unlike many others, problems arise not so much from the constitution’s wording as from how the Montana Supreme Court has mangled it.

The Montana Supreme Court often has betrayed the state constitution’s commitment to property rights. The most notorious example is its subordination of property rights to the court’s erroneous reading of the constitution’s two environmental rights. But there are many other examples.

First: The justices support other guarantees in the Bill of Rights by ruling that state law cannot impair them unless the law is “necessary to further a compelling state interest.” But for reasons they have never explained, the justices deny the same protection to property rights.

Second: The court grants regulations restricting property rights “great deference”—but when, in 2013 and 2015, it encountered rare, and long-standing, government regulations actually protecting property, the court overruled both of them. In 2016, the court upheld the City of Missoula’s seizure of a water company, although the city’s decision was supported by no real reason other than socialist ideology.

Third: The court has effectively deleted the constitution’s requirement that owners be compensated when property is damaged rather than seized. Despite the clear difference in wording between the Montana and U.S. Constitutions, the court applies the less protective federal standard.

Fourth: When a state law deliberately destroyed Montana businesses that formerly had been fostered and licensed by the state, the court denied any compensation at all. Even Justice Jim Nelson, one of the most left-leaning justices to serve in modern times, called this decision both unjust and “legally indefensible.”

In theory, Montanans could cure these deficiencies by adopting constitutional amendments strengthening the constitution’s language, changing the structure of the supreme court, and perhaps curbing its jurisdiction. But because the justices uniformly strike down constitutional amendments they find displeasing, only a new convention can propose the necessary changes for the people to consider.