By Mae Nan Ellingson, 1972 Constitutional Convention Delegate
First Published in The Missoulian June 14, 2025
Montana’s 1972 Constitution has been described by some as “progressive” and it was indeed written to move our State forward for “this and future generations.” It provides Montana citizens with an expansive and inclusive bill of rights far surpassing any other state or the US Constitution. But Montana’s 1972 Constitution is also “traditional” in that it enshrines “three separate but equal” branches of government – the Legislature, Executive and Judicial – same as our 1889 Constitution and the US Constitution.
But prior to 1972, the Montana Legislature was not an “equal” branch of government. It was crippled – meeting only every other year for 60 calendar days with no power to do committee work or have staff beyond the days in session.
Not surprisingly, most candidates running to be ConCon delegates, including me, campaigned on a platform of enhancing the power and role of the Legislature. And those delegates constituting the Legislative Committee were united in the purpose of making the “peoples’ branch of government” first among equals. Former legislators serving in the Convention knew all too well the limitations of the “pressure cooker,” as the Legislature was commonly described. The 1972 ConCon provided for annual legislative sessions, interim committee work with staff and the ability to call itself into special session, which previously only the Governor could do.
The 1972 Constitution did not try to increase powers or aggrandize the role of Montana’s Judicial branch because the role of the courts in reviewing and striking down legislation that violates the constitution has been a well-established judicial responsibility since the 1803 federal Marbury vs. Madison decision. The primary focus of the ConCon’s debates on the Judicial Article was how members of the judiciary were to be selected – through popular election or by merit-based appointment, the financing of Supreme Court elections, and the number of Justices. Supporters of judicial reform supported a “Montana Plan” for merit-based selection but the full Convention stayed with the Montana tradition – elected judges – while increasing the number of Justices from five to seven.
The Legislature was granted all legislative power of the State except that reserved to the people – initiative and referendum. And the Constitution authorizes and directs the Legislature to implement many provisions of the Constitution. But the Constitution not only grants the Legislature power, it also imposes limitations on it, in particular in the Declaration of Rights.
The 1972 delegates had very high regard for the legislature and the legislative process. Nowhere is this more evident than in Article IX, Environment and Natural Resources. There the Constitution provides that the state and each person shall “maintain and improve a clean and healthful environment for present and future generations,” which is also recognized as an inalienable or fundamental right. The Constitution charges the Legislature with implementing those fundamental protections. The Supreme Court can only determine the constitutionality and enforceability of legislation and must stop it from going into effect if unconstitutional. Deference is given to duly enacted legislation, except when legislation is challenged on the basis that it infringes on a fundamental right protected by the Constitution. Then the Court is required to exercise a different standard of review and scrutiny. When the Montana Supreme Court consistently rules that the legislature cannot ignore the Constitution, it is only fulfilling its primary responsibility.
The Supreme Court cannot legislate as the Legislature can. The Justices’ oath is to protect, uphold and defend the Constitution. If Montanans are really serious about protecting their right to a clean and healthful environment, they need to elect legislators, a Governor and Attorney General. who will embrace, implement and enforce those rights in order to insure they are more than just words on paper.
Mae Nan Ellingson, a retired Missoula attorney, served as a Republican delegate to the 1972 Constitutional Convention and was youngest among its 100 delegates. After being recognized as one of the most effective delegates, Mae Nan later attended law school and in practice in finance law with the Dorsey Whitney law firm became one of Montana’s most respected attorneys. In her retirement she helped form Friends of the Montana Constitution and is an ex officio member of its Board of Directors.