Delegates celebrate 34th anniversary of the creation of Montana’s Constitution

Hobnobbing with the Beautiful People

By Marjorie Smith, 9-13-06

Okay, he didn’t actually call the people beautiful. What litigant extraordinaire James Goetz did last Saturday in Bozeman was tell the delegates to the 1972 Montana Constitutional Convention that the document they created was beautiful. And brilliant.

The occasion was the 34th annual reunion of the ConCon delegates. Goetz – who is famous (or notorious in some circles) for winning precedent-setting environmental cases – was one of two featured speakers at the anniversary banquet. Thanks to the kindness of ConCon delegate Grace Bates of Amsterdam, I was able to listen to Goetz and Diana Dowling, the other speaker, as well as bask in the afterglow of what the delegates accomplished three and a half decades ago.

What they did was phenomenal: they created what is still regarded by many as the most progressive state constitution in the nation.

“We often tell each other that if it had been a few years earlier, we never could have come up with that document,” says Dorothy Eck who parlayed her work as a delegate into a job working on implementation of the constitution for Governor Tom Judge, followed by years representing Bozeman in the Montana senate. “And if it had been a few years later, we couldn’t have done it. But 1972 was the right time.”

Goetz, who graduated from Yale Law School in 1968 and returned to practice law in his home state, acknowledged that much of his career success has been based upon the protections for the environment, the guarantees of individual privacy, and the provisions for open government which the delegates had built into the constitution. And, he noted, there are some places in which the Montana Constitution is ahead of the U.S. Constitution in protecting rights. (Protection against the government’s using the power of eminent domain to take property from one private party to give to another springs to mind immediately. In Montana, what happened in the infamous Kelo case in Connecticut where a city used the power of eminent domain to condemn a home so that the land could be put to more lucrative use by a private developer can only happen where blight has been declared. Hence the chill the word blight engenders in some Montana neighborhoods – but that’s another story.)

This story is about those beautiful, brilliant folks who constructed our constitution. The death in Arizona of former Governor Judge the day before the delegates gathered for their annual reunion lent a special poignancy this year. “We talked about Tom Judge a great deal at lunch,” says Dorothy Eck. “He really played a big part in the creation of the convention in the first place – he may even have cast the deciding vote for the legislation that created the convention.” She says Judge, who was lieutenant governor at the time, advised the League of Women Voters, in which both she and Grace Bates were active, on producing material to persuade Montana voters to create the convention. “And then by the time the people ratified the constitution, Tom was governor and he moved immediately to implement the new system. He was a strong supporter of change.”

Dorothy is convinced that for Montana, it was time for a change. “We’d just shaken off the control of Montana Power and the Anaconda Company,” she recalls. But she does accept some credit, as a delegate, for the success of the project. “The very first thing we did was to be seated alphabetically instead of with Republicans on one side of the aisle and Democrats on the other. And as our deliberations progressed through the weeks, people who thought they were conservative when we started found themselves fighting for really progressive provisions.”

At the banquet Saturday evening, all the one-time delegates at the head table – Louise Cross, Bob Campbell and Arlyne Reichert – paid tribute to Tom Judge. Then Diana Dowling, who served as a staff counsel during the 1972 convention, provided the delegates with her own observations about the implementation of the constitution after Montana voters narrowly ratified it in June, 1972 (50.2 percent of votes were in favor). Professing that she is politically naïve and devoid of interest in policy, back then as well as now, Dowling said that in 1972, her concern was that the constitution be written clearly, whatever it ended up saying. Dowling attributed much of the success of the marathon 54-day convention and the document it produced to the fact that individual eccentricities in some delegates were balanced by the eccentricities of other delegates. Thus, a generally acceptable document was created.

It was a radical departure from the 1889 constitution under which Montanans labored until this group of pleasant and agreeable people created their version. No longer do the exploitive industries – particularly mining – have the upper hand. Instead of being ruled by the Copper Kings, Montana became a jurisdiction where The People – yeah, us -- have the last word (and where, as Dowling pointed out, it is extremely easy for The People to amend their constitution.) In addition to environmental protections and open government provisions, the 1972 constitution is remarkable for the attention it gives to education and to maintaining Native American cultures.

Beyond balanced eccentricities, I think most students of political science would agree that the most important factor in getting the constitution we ended up with in 1972 was a Montana Supreme Court ruling that every elected official in the state was ineligible to be a delegate to the convention. Thus the convention became a gathering of 100 representatives of the people. Instead of being the result of partisan jockeying and horse trading among political professionals, the constitution was created by folks getting to know each other and the processes of government at the same time. There were government “pros” in the convention – 24 attorneys and a few former legislators. But there were also 17 people who listed themselves as farmers or ranchers, and eight housewives like both of my friends, Grace Bates and Dorothy Eck.

A couple of weeks ago a friend of mine, a Japanese academic, interviewed Grace for a series of oral history videos she intends to post on an educational web site devoted to women of the West. No, Grace told Kayoko, running for the convention was not the usual sort of thing for a woman of Dutch ethnic background in rural Gallatin County. But since her husband had no objections, and her sons were grown, she decided to give it a shot. Sitting in the living room of the home she has occupied for over sixty years in Amsterdam village, across the street from the house where she was born 89 years ago, Grace Bates radiates pride in having been such an integral part of her state’s history.

On Saturday evening, as Louise Cross’ son, who happens to be a professional wedding photographer, herded the delegates out into the fading daylight for the annual reunion photo, I watched the faces of these beautiful people. Time has taken its toll on the delegates. Two of the gentlemen used walkers to toddle outside for the photograph. Grace tells me that eighteen made it to this year’s gathering. Of the original 100, 43 have died. They’ve completely lost track of one delegate (although several of the delegates are using Google and other modern technology to try to track him down and predict that as a lawyer, he must have left a trail). Bob Campbell reports that one delegate was planning to come until he injured himself fishing. “And he’s not even a fisherman!” Campbell laughed.

Ah, I thought, but he had access to the stream. Just as I have access to my government and the very people who organized it.

Thanks to the beautiful people.

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