Constitutional Coup? The Case that Promulgated a New Constitution for Montana

Abstract

This Article examines one of the most important state court cases ever decided. In Montana ex rel. Cashmore v. Anderson, the Montana Supreme Court exercised its original jurisdiction by a 3-2 margin to order that the state’s original constitution be replaced with a new one that likely had failed of ratification. In doing so, the court yielded to interest groups that favored replacing the original state constitution with an instrument based on radically different premises. Political threats may have caused the swing justice to vote for the new constitution, but even if that did not occur, the case represents a striking example of the failure of the rule of law. The Article also proposes reforms that may reduce the chances of a recurrence.

Keywords: Montana Constitution, Montana Supreme Court, rule of law, judicial activism, state constitutional law

JEL Classification: K1, K10, K19