We the People of Montana

1884 Preamble

1884 Montana Constitution

This is my favorite quote from the 1889 Montana Constitutional Convention transcripts:

I must say that the ladies are very fond of this smoky city, as [Butte] is sometimes called, because there is just enough arsenic there to give them a beautiful complexion, and that is the reason the ladies of Butte are renowned wherever they go for their beautiful complexions. (Laughter). … Now talking about this smoke, I believe there are times when there is smoke settling over the city, but I say it would be a great deal better for other cities in the territory if they had more smoke and less diphtheria and other diseases. It has been believed by all the physicians of Butte that the smoke that sometimes prevails there is a disinfectant, and destroys the microbes that constitute the germs of disease. … [I]t would be a great advantage for the other cities, as I have said, to have a little more smoke and business activity and less disease.

I can’t claim to have read the entire 974-page transcript, but this is such a gem I can’t help but declare it my favorite passage. It actually is a very small part of a wonderfully funny speech by the mining-magnate William A. Clark, who is not generally regarded by history as being funny. This passage is part of a debate about where the capitol should be located during which he extolled the virtues of Butte, then a bustling hub of mining activity.

Montana has had only two constitutions, the 1889 Constitution that established our statehood, and the 1972 Constitution. Montanans had also adopted earlier constitutions, one in 1884 in support of a bid for statehood, which was denied by Congress for political reasons, and one in 1886, the only copy of which was lost before it was even printed. One legend is that it fell out of a saddle bag on its way to Minneapolis where the closest printing press was.

The 1972 Montana Constitution has been touted for its progressive ideas that protect Montana ideals: privacy, public participation, liberty, human dignity, and environmental protection. This makes the Constitution an interesting document to research, both for the lawyers and politicians who apply its provisions and scholars who look to it as both a historical and modern legal document.

Constitutional researchers are usually trying to answer one (or both) of these questions: 1) how has a certain provision been interpreted and applied; or 2) what is history of this provision? Here are some helpful sources and research hints for researching the Montana Constitution.

  1. Start by looking up the provision in the Montana Code Annotated/Montana Code Annotated Annotations in print or on Lexis or Westlaw. The “annotations” (called “notes of decisions” in the electronic versions) are summaries of the cases that apply and interpret the provision you are looking at. If you are on Lexis/Westlaw, also look at the “credits” at the end of the provision. They will show which provisions originated in the 1889 Constitution which will help if you are going to look more into the background of the provision.
  2. Look for law review articles. Law review articles will provide a scholarly discussion of the provision. Montana Law Review is an especially good source for Montana constitutional issues, but look broader as well to see how the Montana Constitution is being discussed by scholars elsewhere. However, you have to be especially aware of the scope of your source. Westlaw only has Montana Law Review back to 1994 (with selected coverage back to 1985); Lexis only has it back to 1999. If you are trying to determine the contemporary discussion– what were scholars writing about the Montana Constitution when it was new– Lexis and Westlaw are not good sources. Instead, try the Scholarly Forum @ UM Law, which has full-text of all issues of the Montana Law Review back to the first and everything (almost) published by UM Law faculty regardless of where it was published.
  3. Read the debates in the transcripts of the 1972 Montana Constitutional Convention. Researchers are fortunate that there is a complete record of the Montana Constitutional Convention. The 8 volume set contains delegate proposals, committee reports, verbatim transcripts and an index that allows you to locate relevant portions of the debate by article and section. The Jameson Law Library has several copies of the print set and it is online courtesy of the State Law Library of Montana. In addition to the transcripts, the Library also has copies of the the memos, studies and occasional papers the delegates used as they were drafting and debating. These sources may provide insight into some of the sources and issues underlying the discussions.
  4. Research the ratification. When we research the “legislative history” of a statute, we are most often looking for the intent of the legislators who enacted the statute. Constitutions, however, are not enacted by a legislature– they are ratified by the people. Although the transcripts can provide insight into what the delegates discussed and what their concerns were and even what their intent was, the intent that may be most relevant is the intent of the people who ratified the Constitution. What did they think a particular provision meant? This is tricky (but really interesting) research. The Convention published a newspaper insert with the official text and brief explanations of the new new Constitution. This would have been widely distributed and likely was the document that would have been read by the largest number of people. Editorials and letters to the editors will provide great insight into what people were talking about and concerned with, but the discussions will be more localized. A historical newspaper database like the Access Newspaper Archive (available on the UM campus through Mansfield Library) is a good way to conduct this type of research. For coverage from Missoula, the Missoula Public Library has a searchable index to the Missoulian and both the Missoula Public Library and Mansfield Library have issues of the newspaper back to the earliest issues on microfiche.

A few other sources for your research:

  • 1889 Montana Constitution. The transcripts of the proceedings are available in print at the Jameson Library and the State Law Library but they aren’t online. The index to the Proceedings is online from the State Law Library.
  • 1884 Montana Constitution. The transcripts of the proceedings of the 1884 constitutional convention are available in print, but they are handwritten and not indexed.
  • Larry M. Elison & Fritz Snyder, The Montana Constitution: A Reference Guide (Greenwood Press 2001). This book is an excellent resource covering both the constitutional drafting & debates and constitutional interpretation.
  • Jameson Law Library Montana Legal Research webpage. The Montana Constitution section of this website links to many of the resources discussed above.
  • University of Montana Mansfield Library. Use the “Search library resources” search box to search for additional books and journals that discuss the Montana Constitution from other academic viewpoints.
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