New MSPC study makes the case for a Montana Constitutional Convention

Mountain States Policy Center today released a major new study examining Montana’s 1972 Constitution and making the case that voters should seriously consider calling a new constitutional convention when the question returns to the statewide ballot in 2030.

The study, “We the People of Montana: The Case for a Montana Constitutional Convention,” was authored by constitutional scholar Rob Natelson, Senior Fellow in Constitutional Jurisprudence at Mountain States Policy Center. It examines the history of Montana’s constitutions, the drafting and ratification of the current document, decades of court interpretations, and reforms a future convention could consider.

“Montanans will have an extraordinary opportunity in 2030 to decide whether their state constitution still serves them as well as it should,” said Chris Cargill, President and CEO of Mountain States Policy Center. “This study makes clear that the question deserves a serious discussion. Montana’s Constitution has strengths worth preserving, but there are also structural problems, vague provisions and weaknesses that have accumulated over more than half a century.”

Under the Montana Constitution, voters are given the opportunity every 20 years to decide whether to call a constitutional convention. Voters rejected the idea by a wide margin in 1990, while the vote was considerably closer in 2010. The question will appear again in 2030. Any convention would consist of elected delegates, and any revisions or new constitution produced by the convention would still have to be approved by Montana voters before taking effect.

Natelson’s study argues that the current constitution suffers from four broad categories of problems: poor draftsmanship, legal defects, authoritarian mandates and inadequate safeguards on government power. It also contends that some Montana Supreme Court interpretations have expanded or altered constitutional provisions beyond what voters understood when they approved the document in 1972.

Among the issues examined in the report are the constitutional powers of the Board of Regents, K-12 education language, water rights, environmental protections, property rights, privacy provisions, fiscal restraints and Montana’s constitutional amendment process. The study also notes that Montana’s Constitution has already been amended 38 times in 54 years, despite significant judicial restrictions on the amendment process.

One of the study’s major concerns is the relative lack of fiscal protections in Montana’s current Constitution. Natelson notes that states historically adopted constitutional limits on taxes, spending and debt after periods of severe fiscal problems, while Montana’s 1972 Constitution retained comparatively few such restraints. The paper suggests a future convention could consider voter approval requirements for tax increases, legislative supermajorities, stronger spending protections and other fiscal safeguards.

The report also devotes significant attention to the Montana Supreme Court and the constitutional amendment process. Natelson argues that a series of court decisions has effectively given the judiciary broad discretion to decide which proposed constitutional amendments can reach voters. The study cites recent cases in which the court has applied different standards to different initiatives and argues that reform is necessary to return greater control over constitutional change to Montana voters.

“The most fundamental principle of representative government is that political power ultimately belongs to the people,” Cargill said. “A constitutional convention does not automatically change a single word of Montana’s Constitution. It simply gives elected delegates an opportunity to propose reforms — and then gives the people of Montana the final say.”

Natelson concludes that a convention need not discard the current Constitution altogether. Instead, he argues that delegates could preserve its strongest provisions while correcting ambiguities, strengthening protections for individual liberty and property, improving fiscal safeguards and clarifying the respective powers of the legislature, courts and other state institutions.

The study ultimately describes the 2030 vote as an opportunity for Montanans to reassess their foundational governing document and restore what Natelson calls “responsible government and popular control.” The report urges Montanans to begin examining the issue well before the convention question appears on the ballot.

Natelson served as a law professor at the University of Montana from 1987 to 2010 and is one of the nation’s most frequently cited active constitutional scholars. His scholarship has been cited by U.S. Supreme Court justices 41 times, as well as by numerous federal appellate courts and the supreme courts of 18 states, including Montana.

About Mountain States Policy Center

Mountain States Policy Center is an independent research organization dedicated to providing free-market solutions to public policy challenges throughout Idaho, Montana, Washington and Wyoming. MSPC conducts research and educates policymakers and the public on issues including taxation, education, government accountability, economic opportunity and constitutional governance.

###