Montana’s original 1889 state constitution had become increasingly out-dated and unworkable. The 1969 Legislature referred the question of rewriting it to the people, and in 1970, by a nearly 2-to1 majority, Montana voters agreed with the need for a constitutional convention.
A special primary to elect convention delegates was slated for September 1971, with the general election in November. After spirited back-to-back statewide special elections 100 delegates were chosen, and the “Con Con” convened in Helena in January 1972.
The convention completed its document in late March for submission to the voters at the regular primary election in June. The campaign for ratification was heated and rowdy. At one point Convention President Leo Graybill of Great Falls was threatened with a contempt citation by the Montana Supreme Court, which in August ruled in a controversial 3-2 decision that the constitution had been ratified with just 50.55percent of the vote.
A state constitution is the foundation for all state laws, so the legislative sessions that followed the constitution’s adoption, especially the 1973 legislative session, were buried in constitution implementation legislation. Other business had to wait as volumes of law were painstakingly rewired into the provisions of the new constitution. Then, litigation followed the constitution’s implementation as various interests scrambled into court for interpretations of how the new constitution affected them.
Certainly the 1972 constitution isn’t perfect. But as someone who served in the Legislature under both the 1889 and 1972 constitutions, I personally know the 1972 document is vastly superior. It’s practical, understandable and more protective of human rights and liberties. It contains bold and sometimes contentious provisions such as an explicit right to privacy, to a clean and healthful environment and to a clearly defined individual right to bear arms.
Unique among state constitutions, ours recognizes the personal right to human dignity, and the special heritage of American Indians. Almost uniquely, it guarantees Montanans the opportunity, every 20 years, to decide whether to call a new constitutional convention. Twenty years ago, by an overwhelming vote of 245,009 to 53,630, we decided not to. In November we will vote on that question again.
Is doing over the state constitution something we should do? After adapting to it and applying it for 40 years, does it make sense to throw it out and start all over? I don’t think so.
To begin with, the Secretary of State’s office estimates two special statewide delegate elections conducted according to present law could cost as much as $4,147,861.
Based on the cost of the last session of the 100-member House of Representatives, a constitutional convention would cost about $2,603,637. If delegates could agree on a rewrite, and after a probably raucous and polarizing statewide ratification election it is approved by the people, then would come the additional burdensome task of tying existing laws into the new constitution. Then, more costly litigation to interpret it.
Ours is one of only 16 state constitutions which can be amended directly by the people. While we have approved several proposed amendments referred to us by the legislature in the 20 years since we voted to reject calling another convention, we have by our own initiative amended it only twice in that period: once to impose term limits, and once to clarify the definition of marriage. Only twice in 20 years. We must not see much wrong with our constitution. If we think it needs to be amended again, we the people can do it again. Let’s not vote to subject ourselves to the costly, confusing, inflammatory and unnecessary process of writing the constitution all over again.
(Bob Brown is a former Montana Secretary of State and former president of the Montana Senate.)