Constitutional amendments threaten to usurp reins of government

Alexander Hamilton asked the question: “whether men {and women] are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

What will our answer be?

Our constitutions, approved by the people and not their legislative agents, are a higher form of law than the statutory creations of the legislative branch. They are exclusively focused on the public good, instead of party preference or autocratic impulse. Accordingly, amending a constitution, is, by express design, much more difficult than the enactment of a simple statutory provision.

However, when the question arises whether an amendment to the constitution should be referred to the people, legislators assume a position different from that associated with routine law-making duties. In such an instance, it is incumbent upon those legislators, in concert with their oath, to determine, to a moral certainty, that the offered amendment will serve the public good. Not just the public good of some, but the best interest of all.

Since the 1972 Montana Constitution was passed 50 years ago, there have been 50 constitutional amendment proposals referred to the people by the Montana Legislature and placed on the ballot. An average of one per year.

During that same period of 50 years, through 27 sessions of the Montana Legislature, there were never more than five proposals in any one legislative session placed on the ballot. In four of the last seven sessions of the Legislature, there were no constitutional amendment proposals referred to the people and placed on the ballot.

This year in the Montana Legislature, there are 57 constitutional amendment proposals. Four of those proposals have been introduced. Of the remaining 53 proposals, apparently only seven have been drafted. So, at this point, the content of the remainder remains a mystery.

It is important to note that, based on titles alone, nine of the proposed constitutional amendments focus on a variety of different issues redesigning the judiciary, including the selection and terms of supreme court justices; term limits for supreme court justices; new judicial recall provisions; judicial appointments; changes to the judicial standards commission; the removal and discipline of judges; and, astonishingly, a proposal providing for the impaneling of a grand jury in criminal cases by the voters of an individual county, along with a mandatory duty requiring the county attorney to prosecute the voter-initiated indictment or face a criminal charge of obstruction of justice or official misconduct.

In addition to the focus on the judiciary, there are three proposed amendments regarding the Board of Regents and 13 centered on elections, redistricting and ballot issues. There are, then, 21 proposals, or 38 percent, of the total suggested changes to alter the Constitution that are directed at the judiciary, the Board of Regents, elections and redistricting.

It cannot escape notice that the unprecedented number of the proposed constitutional amendments presented to a single legislature exceeds the total number of legislatively referred constitutional amendments placed on the ballot during the last 50 years. Nor can it be ignored that all 57 amendment proposals have been requested by the same political party; or that a significant number of the proposed constitutional amendments are closely connected to issues that were the subject of intense debate and litigation involving Republican elected officials, the Board of Regents and the courts during and after the 2021 legislative assembly.

The picture painted by all of these interrelated facts is precisely why George Washington, in his farewell address warned against the rise of political parties: “They serve to organize faction; to give it an artificial and extraordinary force; to put in the place of the delegated will of the nation the will of a party” and “... in the course of time … to become potent engines by which … cunning, ambitious ... men will be enabled to subvert the power of the people and to usurp for themselves the reins of government.”

The spirit of party, in its dominant form, Washington believed, “agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, [and] foments occasionally riot and insurrection.”

Marc Racicot

Former Governor of Montana