History

History and Theory of “right to revolution” Provisions

In preparation for the 1971-1972 Montana Constitutional Convention, Rick Applegate submitted an extensive study on the Bill of Rights. Applegate additionally served as the Research Analyst for the Bill of Rights Subcommittee during the Convention. Montana Constitutional Convention 1971-1972, Vol. I, Delegate Information, at 22 (1979), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol1.pdf.

Where provisions like section 2 are included in a bill of rights section of a constitution, there is a common view that they act essentially as non-enforceable statements of political theory more so than concrete enforceable rights. Nevertheless, the inclusion of a political theory right in a bill of rights may stem from the desire to solidify basic foundational political beliefs. In the American revolutionary period the notion of popular sovereignty was a foundational belief, and stemming from that was the belief that the people have an inherent natural right to revolution. Montana Constitutional Convention Occasional Papers: Bill of Rights, 70, 77-80 (1971), available at https://archive.org/details/billofrights00applrich/page/n1/mode/2up.

Right to revolution provisions were frequently included in revolution-era declarations and constitutions, most notably in the American Declaration of Independence:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” The Declaration of Independence para. 2 (1776). available at https://www.archives.gov/founding-docs/declaration-transcript.

In Applegate’s study, he quotes author Vern Countryman: “the colonists were much closer to a major political event than contemporary Americans; their respect for public vigor was reflected in constitutions which tended ‘to be somewhat more robust’ than the later constitutions.” It is perhaps significant that the drafters of the original Montana constitution chose to include a right to revolution in light of the fact that the American Civil War had concluded approximately 17 years earlier. Montana Constitutional Convention Occasional Papers: Bill of Rights, 80 (1971). available at https://archive.org/details/billofrights00applrich/page/n1/mode/2up.

Applegate states that one reason to include political theory rights in a bill of rights is to “make more explicit the values and reasoning underlying the safeguard of certain liberties and the constitution.” Applegate included passages from John Jameson’s treatise on constitutional conventions: “A Bill of Rights consists of solemn declarations of abstract principles…digested out of the experience of the free people of England and America during six hundred years of struggle for constitutional liberty…these principles…abstract, but only in deference to the common forms of speech, which thus characterize whatever is viewed as disconnected from the circumstances of time and place. Properly considered, however, those principles are the most concrete of all, as being such, not simply under certain conditions, but irrespective of all conditions.” Id. at 73.

Applegate further notes that substantive rights sometimes develop from foundational political theory rights. As an example, he points to the famous phrase “no taxation without representation”, which he posits was fundamental in developing voting rights. Furthermore, political theory rights serve as justification and foundations from which other rights can be justified and explained. Id. at 70, 72.

In Applegate’s study, he cites Stephen Parello Jr.: Individuals have “a civil right to alter government constitutionally” and a “natural right to alter or abolish government unconstitutionally.” Montana’s inclusion of the provision establishes that here and in other places the constitution provides a basis by which Montanans, who give the government its sovereignty, may withdraw that sovereignty by constitutional right or otherwise. Id. at 79.

 

Sources

1884 Proposed Montana Constitution

“That the people of this State have the sole and exclusive right of governing themselves, as a free, sovereign, and independent State, and to alter and abolish their Constitution and form of government whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.” 1884 Mont. Const. art III, § 2 (proposed), available at https://courts.mt.gov/portals/189/library/docs/1884const.pdf.

Source of 1884 version

“ Article three, The Declaration of Rights, is, for the greater part, taken directly from Colorado, sections one to seven being word for word the same as sections one to seven in Colorado.” Mont. Const. Conv. Comm'n., Mont. Const. Rsch. Memorandum No. 4: Sources of the Montana Constitution, 2 (1971–1972), available at https://archive.org/details/sourcesofmontana00allerich.

Montana’s section 2, was identical to the Colorado version except for “the state” rather than “this state”. Montana Constitutional Convention Occasional Papers: Comparison of the Montana Constitution with the Constitutions of Selected Other States, Article III, 2 (1971). available at https://archive.org/details/comparisonofmont00montrich/mode/2up.

“The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided, such change be not repugnant to the constitution of the United States.” 1876 Colo. Const. art II, § 2. (LEXIS through 2020 Sess.), available at Lexis.

 

1889 Montana Constitution

“The people of the state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state, and to alter and abolish their constitution and form of government, whenever they may deem it necessary to their safety and happiness, provided such changes be not repugnant to the constitution of the United States.” 1889 Mont. Const. art III, § 2, available at https://courts.mt.gov/portals/189/library/docs/1889cons.pdf.

The 1889 version is identical to the 1884 version except for the removal of the word “that” from the beginning of the sentence.

1889 Constitutional Convention. The 1889 Constitutional Convention took place in Helena, Montana between 7/4/1889 and 8/17/1889.

7/10/1889, day 6: Report on the Preamble and Bill of Rights submitted for consideration by Chairman Bickford of Committee no. 1.

7/18/1889, day 11: Section 2 read into the record before the Committee of the Whole without amendment or debate.

7/20/1889, day 13: The Committee of the Whole considers amendments to the Preamble and Bill of Rights. No amendments are proposed for Section 2.

7/23/1889, day 15: Section 2 read into the record before the Committee of the Whole without amendment or debate.

7/24/1889, day 16: Proposition No. 1 (Preamble and Bill of Rights) adopted by a vote of 66-1.

8/18/1889, day 36: Proposed revisions of Committee on Revision and Phraseology to Proposition No. 1 submitted for consideration. No revisions are proposed for Section 2. Montana Constitutional Convention 1889, Proceedings and Debates of the Constitutional Convention, 47, 98, 177, 250, 271, 951 (1921), available at https://archive.org/details/proceedingsdebat00montrich/page/96/mode/2up.

 

1972 Montana Constitution

“The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.” Mont. Const. art. II § 2 (1972), available at https://leg.mt.gov/bills/mca/title_0000/article_0020/part_0010/section_0020/0000-0020-0010-0020.html.

 

Drafting

Preliminary Studies

In the years leading up to the 1972 Constitutional Convention various efforts were made in pursuit of the goal of modernizing the state constitution. One such effort was the Legislative Council Subcommittee on the Constitution, which submitted a report in 1967 in which the 1889 constitution was compared against several other recent constitutions. Of the six comparison constitutions, it was found that only two had sections that were comparable to section 2- New Jersey and Puerto Rico. New Jersey: “Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same whenever the public good may require it.” Puerto Rico: “The government of the Commonwealth of Puerto Rico shall be republican in form and its legislative, judicial and executive branches as established by this Constitution shall be equally subordinate to the sovereignty of the people of Puerto Rico.” Montana Constitutional Convention Occasional Papers: Comparison of the Montana Constitution with the Constitutions of Selected Other States, Article III, 2 (1971). available at https://archive.org/details/comparisonofmont00montrich/mode/2up.

In 1968 the Subcommittee on the Constitution submitted another report on the 1889 constitution. In this report, the council evaluated the “adequacy” of the constitution section-by-section to determine whether a particular section was conducive to effective government. Their conclusion was that section 2 was adequate, but not absolutely necessary. Montana Constitutional Convention Occasional Papers: New State Constitutions, 11 (1971), available at https://archive.org/details/newstateconstitu00montrich.

In 1969 the Constitution Revision Commission recommended that the Bill of Rights be moved from article III to article II. They did not recommend any changes be made to section 2. Montana Constitutional Convention Occasional Papers: Constitutional Provisions Proposed by Constitution Revision Commission Subcommittees, 37-38 (1971), available at https://archive.org/details/constitutionalpr00montrich.

 

Proposals

The Bill of Rights Committee was comprised of the following delegates: Wade Dahood, Chet Blaylock, George James, Lyle Monroe, Rachell Mansfield, Veronica Sullivan, Marshall Murray, R.S. Hanson, Bob Campbell, Donald Foster, and Dorothy Eck. Additionally, Rick Applegate served as the Research Analyst and Darlene Corbin served as Secretary. Montana Constitutional Convention 1971-1972, Vol. I, Delegate Information, at 22 (1979), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol1.pdf.

No delegate proposals were submitted regarding section 2. Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal Comments at 626, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf, and at https://archive.org/details/billofrightscomm08montrich/page/14/mode/2up?q=self-government at 14.

2/2/1972, Day 15: The Bill of Rights was discussed and debated. Section 2 was not mentioned. Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. II, at 934 (1981). available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf.

2/22/1972, Day 29: The Committee on the Bill of Rights announced to the Committee of the Whole that their report was ready to be printed and submitted for consideration. Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. IV, at 2172 (1981). available at https://archive.org/details/transcriptofprocvol4montrich/page/2172/mode/2up.

2/23/1972: The Committee on the Bill of Rights submitted its report. (Proposed) “Section 2. SELF-GOVERNMENT. The people of the state have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish their constitution and form of government whenever they deem it necessary.” The committee decided after a vote in which only one member dissented, that section 2 should be revised to improve its readability. For the most part, this consisted of the removal of words believed to be unnecessary. Of significance was the removal of the conditions formerly attached to the provision whereby the people of the state had the right to abolish their constitution and form of government only if “necessary to their safety and happiness” and “ not repugnant to the constitution of the United States.” Montana Constitutional Convention, Vol. II, Bill of Rights Committee Proposal Comments at 626, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf., and at https://archive.org/details/billofrightscomm08montrich/page/14/mode/2up?q=self-government at 14.

 

Floor Debate, Revision, and Adoption

Floor Debate

3/7/1972, Day 39: Clerk Hanson read Proposal 8 section 2 into the record. Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. VII, at 5038 (1981). available at https://archive.org/details/vol7transcriptofprocmontrich/page/5716/mode/2up.

Delegate Blaylock:

“Mr. President, we have changed this one so far as the language. We have straightened it out some to make it read a little more simply. For instance, in the old Constitution, right after have the on line twenty-one, we struck the words, so and, because we felt it means the same as exclusive, so we struck those two words. And, then, we took out the sentence – we say there they may alter or abolish their constitution and form of government whenever they may deem it necessary, and we have stricken from this language, provided such change be not repugnant to the Constitution of the United States. We felt that that language was not necessary in this, that this is simply a declaration of our rights as citizens of this state.”

The committee then adopted section two unanimously. Id. at 5041-5042.

Revision

3/13/1972: The Committee on Style, Drafting, Transition and Submission submitted its report on the Bill of Rights. The committee removed the words “of the state”, changed the word “their” to “the”, and added the word “may”. The committee illustrated their revisions by bolding additions and striking-through deletions: “The people of the state have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish their the constitution and form of government whenever they may deem it necessary.”

The committee explained its revision: “Deleting ‘of the state’ from the first sentence avoids repetition. Changing the third person plural possessive pronoun ‘their’ to the definite article makes plain the function of a constitution is to constitute the organic law of the state rather than to establish a possessory relationship between the people and the instrument.” Montana Constitutional Convention, Vol. II, Report of Committee on Style, Drafting, Transition and Submission at 957, 962, 967, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf, and at https://archive.org/details/reportofcommitte08montrich/mode/2up, at 2, 9, 17.

3/16/1972, Day 47: The revised section 2 was read for debate and adoption.

Delegate Schiltz:

“There are minor style changes in section two. We deleted the words, of the state, as not being necessary and substituted the word, the, for the possessive pronoun on line twenty-three. That’s all.” The committee then adopted the revised section two unanimously. Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. X, at 7554 (1981). available at https://archive.org/details/transcriptofprocvol10montrich/page/554/mode/2up

Adoption

3/18/1972, Day 49: After a roll call vote of 96 delegates voting aye, and 0 delegates voting no (4 absent), section 2 was adopted in its final form. Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. XI, at 8026-8028 (1981). available at https://archive.org/details/transcriptofprocvol11montrich/page/8018/mode/2up

 

Ratification

Article II, § 2 was ratified by the people of Montana on June 6, 1972 as part of the Proposed 1972 Constitution. The 1972 Voter's Pamphlet noted that Section 2 was changed only grammatically, and that it continued to provide “Montanans the right to govern themselves and to determine their form of government.” See The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (“Voter Information Pamphlet”), available at http://www.umt.edu/law/library/files/1972voterspamphlet.

 

Interpretation

Commentary

The Legislative Council Subcommittee on the Constitution in 1967 prepared commentary on the “adequacy” of the 1889 Constitution which was used in Montana Constitutional Convention Occasional Paper no. 5 (“Report Number 5”). Among other sources, the committee made use of a paper written by Dr. John Welling Smurr. Commenting on the 1889 Constitution version, he wrote: “Section two exposed the philosophical ignorance of the delegates, who adopted without comment a statement identifying Montana as a ‘free, sovereign, and independent State.’ In common with their historic predecessors and successors, they had only the vaguest notions of what sovereignty involved.” Smurr, J. W., Critical study of the Montana constitutional convention of 1889, 66 (1951) (unpublished thesis, University of Montana) (on file at MSU Library), available at https://scholarworks.umt.edu/etd/1943.