Modernizing State Constitutions Helps Judges Do Their Jobs

A recent decision by the Montana First Judicial District Court against the state’s fossil fuel–friendly energy policies was a landmark victory for young climate activists — one that likely wouldn’t have been possible had the state not updated its constitution a few decades ago. The case underscores how regular, transparent, and democratic revision of state constitutions may assist in ensuring that our laws and institutions can help resolve rather than worsen evolving social issues.

Interpreting one of the nation’s youngest state constitutions — ratified in 1972 — the district court held as unconstitutional certain limitations of the Montana Environmental Protection Act enacted by the state legislature. Much has been written about that decision from an environmental law perspective, with some commentators deeming it “a victory in the expanding fight against government support for oil, gas and coal, the burning of which has rapidly warmed the planet.” Another victory has received less attention: the decision also validates a certain conception of state constitutional law — namely, Justice William J. Brennan’s theory of New Federalism.

Under this theory, per legal historian Kermit Hall, “The U.S. Supreme Court, interpreting the Bill of Rights, sets the minimum floor for rights, while state supreme courts, interpreting their state bill of rights, fix the ceiling.” That’s precisely what the Montana First Judicial District Court did — it looked to the state’s bill of rights, which mandates that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations,” and interpreted that right to afford Montanans protection against the state legislature’s attempt to prevent environmental agencies from considering greenhouse gas emissions and climate impacts when making certain regulatory decisions.

The court reached that interpretation as a result of Montanans’ relatively recent decision to democratically and transparently update their constitution for a new era. In 1971, residents elected 100 delegates to hold a constitutional convention. Notably, these delegates were more or less ordinary. The previous constitution prohibited people from holding two elected offices at once, which meant that folks like Virigina Hogan Blend, a reprographer from Great Falls; Mae Nan Robinson, a 24-year-old government researcher from Missoula; and Carman Sakri, a farmer-rancher from Chester, were among the framers of the state’s new constitution. And, perhaps as importantly, the delegates presided over a transparent process that produced a verbatim transcript of the proceedings and provided members of the public with detailed updates and opportunities to comment on the procedural and substantive aspects of the convention.

Absent this historic and exemplary effort, the district court would have likely lacked a legal basis to raise the ceiling of rights afforded to Montanans. The old constitution, written by Copper Kings in the late 19th century, did little to prevent the exploitation of the environment. In stark contrast, delegates to the ConCon (as it’s known in Montana) explicitly set a much higher ceiling and, in doing so, took steps to ensure that ceiling would remain in place for generations.

Whereas framers of the U.S. Constitution left a trail of interpretative breadcrumbs, Robinson and the other delegates gave contemporary and future generations of state court judges a yellow brick road to follow when analyzing the state’s bill of rights. As noted by the district court, the delegates made their intention with respect to environmental rights clear. They specified, “Our intention was to permit no degradation from the present environment and affirmatively require enhancement of what we have now.” State courts have generally received that message.

The Montana Supreme Court, for example, recognized that the delegates set forth “forward-looking and preventative language.” Likewise, the high court has acknowledged that the framers desired that the constitution provide “the strong environmental protection provision found in any state constitution.”

In some sense, the recent decision demonstrates the value of originalism — or relying on the original public meaning of constitutional text at the time it became law to interpret that text. A more productive and accurate understanding of the decision, however, is that the interpretative value of originalism depends on the processes that gave rise to the text.

In this case, Montana state courts can confidently consult the transcripts of the constitutional convention proceedings, committee reports and proposals, and contemporaneous opinion pieces written by delegates to zero in on the proper interpretation of any constitutional provision. This mountain of interpretative guidance not only results in more consistent judicial decisions but also lends those decisions a greater sense of legitimacy from the public’s perspective. Consider that despite ongoing debates about access to abortions, environmental protection, and separation of powers in Montana, the public remains fiercely defensive of the constitution they (or someone they know) played an active role in developing and ratifying.

There’s an adage in the legal profession that “hard cases make bad law.” A less pithy corollary may be that “transparent and participatory processes make clear law.”

Clear law, though, also depends on the law undergoing timely adjustments. The interpretative power of the convention transcripts, though to a lesser extent than the increasingly rotten Easter eggs left by the founders of the U.S. Constitution, will diminish with time. Few of the 100 delegates to Montana’s constitutional convention are still around today. As their firsthand accounts become less available or meaningful to a public that has few to no memories of the 1970s, it may become easier for courts and advocates to cast doubt on even the most explicit expressions of intent offered by the delegates.

As coverage of state supreme courts and their respective state constitutional law decisions increases, so should an examination of each state’s constitution itself. Unlike the U.S. Constitution, state constitutions have typically not only been amended but completely revised on a relatively frequent basis. That’s a perk, not a quirk. State constitutions can only raise the ceiling of protections that shield against contemporary harms if they undergo regular, transparent, and democratic revision. Most folks don’t know their state has a constitution; imagine their surprise when they realize it’s past its prime and ready for revision. Of course, this is not an endorsement of constitutional conventions dominated by special or partisan interests. Montana’s convention wasn’t perfect, but it’s worth studying and — in my opinion — celebrating and emulating.

 Kevin Frazier is an assistant professor of law at the Benjamin L. Crump College of Law at St. Thomas University. He previously served as a clerk on the Montana Supreme Court.