Montana’s Basic Necessities Clause and the Right to Earn a Living
28 Pages Posted: 5 Oct 2022
Date Written: August 30, 2022
Like many states Montana has a clause in its Declaration of Rights descended from George Mason’s initial draft of the Virginia Declaration of Rights of 1776. But unlike other “Lockean Natural Rights Guarantees,” as they’ve elsewhere been called, Montana’s 1972 Constitution has two unique features. One has been well recognized, the “right to a clean and healthful environment.” But the other, the subject of this Essay, has not, the right “of pursuing life’s basic necessities.”
In a twist of irony the language comes from an effort to create a positive right to subsistence. That effort was defeated at the 1972 convention and turned into a negative right to pursue subsistence, in line with the other Lockean rights that ultimately descend from the hand of Mason. This “new” right is, in fact, as old a right as any other in the Montana Constitution. It was just, through the ironic turnabout at the convention, given articulation for the first time.
The Montana Supreme Court has been inconsistent, to say the least, in protecting this right. This Essay details the origins of the right and then how the court has glimpsed the meaning and promise of the Basic Necessities Clause, but failed to give it the necessities it needs to protect the basic livelihoods of Montanans. However, a rediscovery of those first principles—of 1776 and 1972—would not be difficult for the court to do. It would lead to Montana being among the forefront of states in protecting the right of its citizens to pursue life’s basic necessities, and beyond. I suggest a method by which the court can enforce the clause which may address worries that its justices have held.
Keywords: Montana Constitution, life's basic necessities, state constitutions, George Mason, right to earn a living, constitutional conventions, John Locke
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