The Constitutional Initiative in Montana

Abstract

The constitutional initiative power provided in 1972 Montana Constitution is basic to its plan to increase the democratic responsiveness of a state government weighed down by detailed and inflexible constitutional provisions and interpretations that had accumulated since statehood. It serves, in other words, as a direct practical guarantee of the primary provisions of the Constitution's Declaration of Rights: popular sovereignty and self-government. Popular sovereignty exercised through the constitutional initiative can lead to a paradox, however. While the constitutional initiative can make government more responsive to voters by constraining legislative policymaking or removing constraints on policymaking imposed by judicial review, it also can complicate the constitutional text over time so as to leave state government less responsive in the end. The originators of the constitutional initiative in Montana foresaw this possibility, what one delegate called “a Constitution that looks like California and Louisiana.”

This article discusses the function of the constitutional initiative as a direct expression of the popular sovereignty guaranteed by the Montana Constitution. Part I explores the historical roots of the constitutional initiative power and process in earlier Montana constitutions and elsewhere. Part II records the origin of the constitutional initiative in the debates that preceded, constituted, and followed the 1972 Constitutional Convention and ratification process. Part III describes voters’ use of the constitutional initiative and the Supreme Court’s active supervision of amendment procedures. Circulation of constitutional initiative petitions is the most common form of direct democracy in Montana, but at the polls voters more frequently shape the Constitution by approving amendments referred by the Legislature. Both processes focus on fiscal policy and individual rights. Part IV assesses the constitutional initiative in historical and national contexts and considers its future in Montana. The relative infrequency of constitutional initiatives could change as petitioners drive supply through the professionalization of signature gathering and voters drive demand through attempts to make the legislative and judicial branches more responsive on specific issues. Thus, the future of the Montana Constitution depends on the state government’s fidelity to the principles of popular sovereignty in the current Constitution.

Keywords: State Constitutions, Initiatives

JEL Classification: H10, H70