A Constitution Unique to Montana and Uniquely Montanan

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.  

Like all constitutions, the Montana Constitution is a creature of compromise, spinning a web of rights and powers holding each other in tension. Some of the conflicting values are shared with other foundational documents — liberty and equality, of course, and minority rights and democratic process — but no other state strikes quite the same balance. And the beauty of the Montana Constitution is that no other state could. Unique to Montana and uniquely Montanan, the constitution reflects the state’s natural beauty, its libertarian streak, and its trust in the citizenry.

A Modern Constitutional Project

The Montana Constitution was drafted and ratified in 1972 and went into effect the following year. The 1972 constitution replaced Montana’s first constitution, which had been put together hastily to achieve statehood in 1889, during a convention chaired by one of Montana’s famed Copper Kings (and later disgraced U.S. senator), William Clark. One of six state constitutions adopted that year, the original Montana Constitution shared many provisions with other constitutions of its time and region. But unlike its peers, it was amended only infrequently and ultimately could not withstand the test of time. Indeed, Montana is the only state within the Mountain and Pacific time zones to replace its original constitution.

It may have been the 1889 Constitution’s failure to adapt that spelled its demise. In the late 1960s, frustration grew with Montana’s disjointed and unaccountable executive branch, with an estimated 160-plus different state boards and commissions, labyrinthine chains of command, and low voter competency regarding a too-high number of elected offices. The legislature directed a study of the problem, and the ensuing report described Montana’s Victorian-era constitution as “like the mansions of this time — massive, rambling and adorned with gingerbread.” The study recommended a complete rewrite over “nit-picking” and “avoiding confrontation with the basic problems of reform and change.” Sixty-five percent of voters agreed, and the constitutional convention (or, simply, “Con-Con”) was called.

Convention delegates ran under partisan labels, but sitting legislators, judges, and certain other state officials were ineligible to serve. The resulting convention was largely composed of political outsiders, including business owners, teachers, and homemakers. Assembled during a high-water mark for their party in Montana, Democrats were in the majority: the convention included 58 Democrats, 36 Republicans, and 6 independents. To avoid partisan caucusing, delegates were seated alphabetically instead of by party affiliation. Ultimately, despite serious disagreements about specific provisions during the convention, all 100 convention delegates signed their approval of the document.

At a time when only two women served in the Montana legislature (a record in 1972), 19 of the 100 delegates were women. Although conventional wisdom holds that the delegation was diverse — and it was, given the era and in terms of delegates’ gender, socioeconomic status, and professions — there is a notable exception. While today nearly 10 percent of Montanans are Native American, no Native Americans served at the convention. This gap in representation may be attributable in part to the legislature’s repeated failures to draw constitutionally permissible districts leading up to the convention. As citizen-participants, however, Native Americans advanced and advocated for specific provisions and found some success, including through the enactment of the “Indian Education for All” provision, which commits to preserving Native American cultural identity within public education.

After adjournment, the delegates expected to use funds left over from the convention to explain and advocate for the new constitution. But the Montana Supreme Court held that convention funds could not be used for this purpose; the only official communication permitted was a guide for voters explaining the constitution’s language and any changes from the 1889 document. Delegates and others organized to promote the constitution, and an opposition campaign formed, too. Because of the modernity of the proceedings, many materials are available, providing fertile ground for interpretation. 

The final ratification vote was close, but more Montanans voted yes than no. A few issues were thought of as too controversial to be included in the proposed document, with delegates fearing that their inclusion would prevent the ratification of the constitution. These included creating a bicameral rather than unicameral legislature; authorizing gambling, which had been forbidden under the 1889 Constitution; and allowing the death penalty. Voters separately considered those provisions on the same ballot during the 1972 election. The election led to a lawsuit; over a dissent, the majority of the Montana Supreme Court held that the constitution — including the separately considered provisions — was ratified lawfully.

The Declaration of Rights

Montana’s declaration of rights, found in Article II, currently includes 35 separate provisions, some of which lay out general principles (such as popular sovereignty and human dignity), some of which have been interpreted narrowly (like the right of access to the courts), and some of which include multiple protections (such as the inalienable rights and human dignity provisions). Additionally, some individual rights are grounded in other constitutional articles; these rights are also protected, though less zealously than those found within Article II.

Some Article II provisions are identical or directly analogous to those found within the federal Bill of Rights: religious liberty, speech, freedom from unreasonable searches and seizures, due process, protections against excessive fines and cruel and unusual punishment, confrontation and speedy trial, speedy trial and protection against double jeopardy, civil and criminal jury trial, and takings. But even when the language tracks that of the federal Constitution, the Montana Constitution may provide enhanced protections, especially when other constitutional provisions are also implicated. For example, the search and seizure provision largely tracks the Fourth Amendment, but the separate right to privacy increases the protections available to Montanans challenging the admissibility of evidence in criminal proceedings.

Other rights have no federal analogues but are common within state constitutions. For example, like all other state constitutions save one, the Montana Constitution expressly protects the right to vote. Montana is one of forty constitutions with an “open courts” provision — a right of access to the judiciary that traces to Magna Carta. And, like most state constitutions, the Montana Constitution notes the existence of rights unexpressed within the constitutional text.

Still others are rare or even unique to Montana because of the text or interpretation of the constitutional language. Broad patterns are addressed separately below, but a few provisions deserve repeat mention. Interpretation of Montanans’ explicit right to individual privacy (the “right to be left alone”) reveals both Big Sky Country’s low population density and the timing of the constitution’s ratification, in the wake of federal cases protecting access to contraception. The “right to know” and “right to participate” are, unlike other constitutional rights to government information, self-executing and not subject to limitation by the legislature. And the right to a clean and healthful environment ushered in the nation’s first climate change trial during the summer of 2023.

In the 2024 general election, Montanans ratified an express constitutional right to pre-viability abortion, which had already been afforded protection under the right of privacy. The new provision will become the 36th section within the Declaration of Rights and will go into effect in July 2025.

Unique Patterns in the Constitution’s Text and History

Where Montana’s individual rights provisions depart from provisions in other jurisdictions, a few patterns emerge. First, while the Montana Constitution has been described as “progressive” by both admirers and critics, it also has a distinctly libertarian, Western flavor. Montanans’ “inalienable rights,” for example, include not only to “pursuing life’s basic necessities” and “seeking . . . happiness,” but also to “defending . . . lives and liberties” and “protecting property.” Individual privacy rights are guaranteed as “essential to the well-being of a free society.” There is no question of the scope of gun rights under the Montana Constitution, as “the right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called into question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”

Second, the Montana Constitution reflects state-specific history. The Copper Kings ran business and politics for many of Montana’s early years. By the early 1970s, though, the Anaconda Copper Company (once the fourth largest company in the world) was struggling, and a massive open pit mine called the Berkeley Pit (now a Superfund site) had overtaken longstanding neighborhoods in Butte (once the largest city between Minneapolis and Spokane). Against this backdrop of corruption, the Montana Constitution provides for a uniquely open system of government through the “right to know” and the “right to participate” — provisions that provide a seat at the table for ordinary citizens to oversee and influence government operations. Together, these provisions grant citizens access to nearly all government documents and require agencies and local governments to give citizens a meaningful opportunity to speak out on policy proposals. And the constitutional “right to a clean and healthful environment,” which affirmatively obligates the legislature to take action to protect that right, responds to the exploitation of the state’s rich natural resources at the hands of corporate interests.

Third, just as it reflects its place, the Montana Constitution is a product of its time. As the nation debated — and very nearly agreed upon — the Equal Rights Amendment, Montana expressly protected citizens against sex-based discrimination. The Montana Constitution’s guarantee of equality applies not only against the state but also against “any person, firm, corporation, or institution,” constitutionalizing protections similar to those afforded under the federal Civil Rights Act of 1964. Contemporaneous with the “right to welfare” movement, centered in the American West, Montana created a right to government benefits — a right that later was circumscribed considerably by constitutional referendum. And as the nation debated criminal justice policy, Montana limited the permissible goals of criminal punishment to reformation and prevention — a provision that similarly was later amended by constitutional referendum to provide additional, victim-centered goals. While some of these snapshot-in-time provisions did not last as drafted, the 1972 delegation demonstrated considerable foresight about the future of technology, adopting the right of privacy to prevent the development of a surveillance state.

Fourth, the Montana Constitution reflects the optimism and populism of the constitutional convention and its citizen delegation. Although the convention was called in part to shorten voters’ ballots, the framers ultimately adopted a long ballot, giving voters the power to choose the attorney general, secretary of state, state auditor, superintendent of public instruction, and judges. The rights to know and participate are part of this pattern, too, as the delegates were unconcerned that enhanced citizen participation and oversight could interfere with government operations. Perhaps most importantly, the constitution can be amended by simple majority vote, following either a signature-gathering campaign or legislative referendum, and voters weigh in on whether to call a new constitutional convention every 20 years at minimum.

Limited Legislative Power in Divided Government

Modeled after the federal system of checks and balances, Montana’s government breaks into the legislative, executive, and judicial branches. And, with five statewide elected executive branch officials, conflicts within the executive branch can occur and lead to litigation.

Montanans have shown wariness toward too much government at a few key moments. First, when asked in 1972 whether to adopt a unicameral or bicameral legislature, the voters resoundingly chose the latter, which puts the brakes on majoritarianism. Second, while the constitution initially provided for annual 60-day legislative sessions, it was amended only two years later to limit the legislature to one 90-day session every two years.

The constitution also includes several safeguards against abuses of the legislative process, designed to promote transparency and to limit the legislative power. Bills are restricted to a single subject, and that subject must be reflected in the bill’s title, preventing logrolling and surprise provisions. Similarly, amendments cannot change the bill’s original purpose, ensuring that citizens and legislators are able to comment on and debate the substance of any proposed law. The legislature must be cautious with spending government money: with the exception of the legislative session’s general appropriations bill, any appropriation must be addressed within a separate bill.

And the constitution avoids antidemocratic abuses of representational government through structural innovation. After decades of redistricting failures within the legislature, the constitutional convention came up with a solution for future redistricting — Montana’s independent and bipartisan redistricting commission. The majority and minority party each select two members of the commission, and a tiebreaker is chosen either through consensus of those members or selection by Montana’s nonpartisan supreme court. While the legislature has the opportunity to comment on the commission’s districting plan, it cannot reject or override the plan. The commission is the final word on federal congressional and state legislative districts.

Consistent with the American tradition, the Montana judiciary has the power to determine the constitutionality of legislative and executive acts. The state judicial power is not textually limited to “cases and controversies” like the analogous federal power, but the Montana Supreme Court has incorporated federal doctrine into its conceptualization of the judicial power. At times, however, it has broken slightly with federal law by taking a more relaxed view of standing. Still, neither the text nor the interpretation of the constitution has empowered the judiciary with the authority to issue advisory opinions, and questions about how the state judicial power diverges from Article III courts remain unanswered.

Formal Constitutional Change

All state constitutions — and, indeed, most if not all other modern constitutions — are easier to amend than the U.S. Constitution. The Montana Constitution falls firmly within that tradition, though it still presents hurdles to constitutional change. The primary challenge in Montana is getting a proposed amendment on the ballot; once certified, it is subject only to a simple majority vote.

There are two routes to constitutional amendment. First, two-thirds of all legislators (currently 100 of 150 total legislators) may submit a constitutional referendum to the voters. Second, citizens may petition for an amendment, but the signature-gathering requirement is onerous, requiring 10 percent of the qualified electors of the state, including 10 percent of the voters in 40 of the state’s 100 legislative districts. In part because of the short timeline for signature-gathering, ballot initiatives are expensive, and few proposals make it on the ballot.

Proposed and passed amendments may also be subject to legal challenges. The constitution requires that amendments be presented and voted on separately, creating a significant legal hurdle for any amendment with any effect on more than one existing constitutional provision.

Finally, the same referendum and initiative processes apply to calling a new constitutional convention and reconsidering the constitution in its entirety. Every 20 years, the question of whether to call a constitutional convention is automatically submitted to the voters. In 1990 and 2010, voters roundly rejected a constitutional convention. If the question is not first certified to the voters via the initiative or referendum process, Montanans will be asked again in 2030.

Judicial Interpretation

The Montana Supreme Court has demonstrated its willingness to forge new paths on questions of constitutional interpretation. One of a handful of states without an intermediate appellate court, Montana provides for appeal to the Montana Supreme Court as a matter of right, meaning that constitutional issues do not percolate in appellate courts and that novel questions of constitutional law must be resolved definitively when they reach the high court.

The Montana Supreme Court generally approaches questions of constitutional interpretation by attempting to discern the framers’ intent, which it describes as controlling. With remarkably accessible source documents to draw from, this task is easier than in jurisdictions with older constitutions. And the convention transcripts prove a deep well, with robust debate and explanation of many (though by no means all) of the constitution’s unique provisions. That said, the court has never limited itself to a single interpretive methodology, and it regularly considers pre-1972 Montana cases and law from other jurisdictions in constitutional cases.

For example, in 1995’s State v. Bullock, the court considered whether to march lockstep with federal law in allowing law enforcement officers to enter private property for investigative purposes, so long as they don’t trespass upon the area immediately adjacent to the home. The court applied an omnivorous approach and rejected the federal rule, applying the U.S. Supreme Court’s test for privacy but finding enhanced privacy rights under the Montana Constitution. In a wide-ranging survey, the court looked to its own precedent, the text of the Montana Constitution, and opinions of other state courts considering enhanced privacy rights under their own constitutions.

Perhaps no case has been more significant in Montana constitutional law than 1999’s Armstrong v. Montana, which addressed whether the right of privacy, ratified the year before Roe v. Wade was decided, encompasses the right to a pre-viability abortion. The convention transcripts were indeterminate: the committee tasked with drafting the Declaration of Rights cited U.S. Supreme Court precedent on the right to contraception favorably, and the convention rejected a proposal recognizing fetal personhood, but the delegation did not debate abortion. Looking to federal law, legal philosophy, and its own precedent concluding that the right of privacy includes the right of autonomy, the court found independent support for abortion rights within the Montana Constitution, stronger than those afforded under federal law following Planned Parenthood v. Casey.

Another, more recent example of the court’s approach to constitutional interpretation is 2024’s Montana Democratic Party v. Jacobsen, in which it struck four provisions curtailing voting rights. Rejecting the state’s invitation to apply the federal balancing test, the court reiterated a general approach to alleged infringements of Montana constitutional rights. Government action that restricts a fundamental right — that is, a right found within the Declaration of Rights or necessary for the enjoyment of such a right — is subject to strict scrutiny. Action that restricts a constitutionally protected right sourced elsewhere in the constitution is analyzed under intermediate scrutiny, while other government actions must satisfy rational basis review. Addressing for the first time what standard to apply to actions that minimally burden voting rights, the court held that the primacy of the right of suffrage requires an elevated, middle-tier level of scrutiny. In this and other recent decisions, the court has demonstrated confidence in applying a unique approach to unique constitutional rights, suggesting that today — over 50 years after the constitution’s ratification — it has started to ask whether there is a need to resort to extra-jurisdictional law instead of whether it has good reason to depart from rules developed in well-resourced federal courts.

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Montana, population 1.1 million and 147,000 square miles in size, is aptly described as a small town with long roads. Rurality brings both the benefits of community and shared mission and the danger of sanctimonious meddling. The Montana Constitution capitalizes on these benefits and avoids its detriment by providing unrivaled opportunities for citizen engagement and strong individual freedoms. 

Constance Van Kley is an Assistant Professor at the Blewett School of Law at the University of Montana, where she teaches federal and state constitutional law.