In Defense of Montana’s Constitution

The March 15 rally to defend Montana’s Constitution was a total success.  This rally, in the Capitol rotunda, was sponsored by more than a dozen diverse organizations, all of whom are dedicated to preserving Montana’s Constitution for “this and future generations” in fulfillment of that promise made in its Preamble and in the various rights, duties and obligations set out in the document itself.

As the Montana Supreme Court stated in Armstrong v. State, 1999 MT 261, “the State Constitution is a limitation upon the power of the legislature and not a grant of power to that body.”

More importantly, however, the Court also stated:

Montana’s Constitution, and especially the Declaration of Rights, is not simply a cook book of disconnected and discrete rules written with the vitality of an automobile insurance policy.  Rather our Constitution, and in particular its Declaration of Rights, encompasses a cohesive set of principles, carefully drafted and committed to an abstract ideal of just government.  It is a compact of overlapping and redundant rights and guarantees.

These truths have been lost on the legislature commencing with the 2021 session.  Especially so in the present session dominated by the supermajority/Freedom Caucus.  This session is proposing more amendments to the Constitution (50+) than have been proposed since 1972, in the 51 years since the document was adopted.

This scheme of the supermajority/Freedom Caucus (and it is that), appears to be, “Let’s just shove the Constitution into the fan and see what sticks at the next election.”  The corollary to the fan analogy, however, is that what hits the fan is usually not evenly distributed. And that will most certainly be true of a legislature dedicated to comforting the comfortable, and afflicting the afflicted.

But, back to the rally—a gathering which clearly rankled the supermajority/Freedom Caucus leadership.

I participated and spoke in the rally. What I saw was a diverse group of 150+ Montana citizens exercising their rights to peaceably assemble, to petition their government with their grievances and to speak and listen to those who were presenting.  These citizens were loud in their answers to questions from the podium; they interrupted speakers with applause frequently; they cheered at what they liked; and they booed when they heard how the legislature was trashing our Constitution and our rights.

They were emphatic, unequivocal that the legislature should not try to fix a Constitution that is not broken. The legislature should not tear the Constitution and the judiciary which defends it, apart.

At its closing, I saw these Montanans talking, congratulating speakers, and leaving the rally.  What I did not see was these citizens gathering up their knives, and guns, and tear gas and baseball bats, and ransacking the Capitol.  I did not see them trashing public property and destroying priceless treasures.  I did not see them smearing feces on the Capitol walls.  I did not see them breaking into private offices and defiling the personal property of the officeholders.  I did not see them stealing laptops.  I did not see them erecting a scaffold in the rotunda, throwing a noose over it, and threatening to execute public officials. I did not see them injuring and killing police officers.

Indeed, I did not see these citizens turn into a roving band of thugs–or “tourists” as the Freedom Caucus refers to them–and attempt to overthrow the government.

Rather, the rally was a demonstration that the democracy, preserved in our Constitution, works and is worth protecting.

Sadly, it was also a lesson lost on the supermajority/Freedom Caucus.

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.