Article II, Section 34; Unenumerated Rights. The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people.

History

[History includes the sources, drafting, and ratification of the provision.]

Sources

[Sources include preceding constitutions including Montana 1889, Montana 1884, other state constitutions, and other textual sources of the provision.]

1884 Montana Constitution (proposed)

1889 Montana Constitution

Other Sources

Drafting

Background: The Constitution Revision Commission

By the late 1960’s Montana’s nearly eighty-year-old Constitution was due for a revision. The Constitution Revision Commission was established to “study the Montana Constitution", begin drafting a proposed constitution, and report to the Legislative Assembly “any proposal for change."Constitutional Provisions Proposed by Constitution Revision Commission Subcommittees, Occasional Paper No. 7, preface (1971-72). The Legislative Council Subcommittee on the Constitution, a subcommittee of the Constitution Revision Commission, prepared a series of reports to be presented for deliberation in December 1969. Among these reports were a comparison of Montana’s Constitution with those of six other states, preliminary comments on each section of the existing constitution, and proposed amendments. The Constitution Revision Commission’s goal was not to re-draft the constitution, but to evaluate its “adequacy."Comparison of the Montana Constitution with the Constitutions of Selected Other States, Occasional Paper No. 5, iii-iv (1971-72). At deliberations, the following conclusions were reached regarding Montana’s 1889 Constitution:

• There was a need for “substantial revision and improvement.”
• A Constitutional Convention was “the most feasible and desirable method of changing the Constitution.”
• The Commission would cede to elected delegates the task of re-drafting.
• The Commission would implement a public information program to encourage Montanans to consider a constitutional revision.Proposed Provisions, supra note 1, at preface.

Less than one year after the Constitution Revision Commission determined Montana’s Constitution was in need of revision, Montanans came together in agreement, voting by referendum in November 1970 to call a constitutional convention. By early 1972, Montana’s Constitutional Convention was underway. The Bill of Rights Committee Delegates were provided source material by the Constitutional Convention Commission, including the Legislative Council Subcommittee on the Constitution's proposed revisions. In that report, the Constitution Revision Commission's subcommittee determined the 1889 Montana Constitution's "unenumerated rights" provision, Article III, Section 30, to be "adequate" and recommended it be "retained" in any new constitution.Proposed Provisions, supra note 1, at 37.

Delegate Proposals

The Bill of Rights Committee received no delegate proposals on this provision.Bill of Rights Committee Proposal No. VIII, February 23, 1972, in II MONTANA CONSTITUTIONAL CONVENTION 645, (1972).

The Bill of Rights Committee

Members:

• Wade J. Dahood, Chairman; Anaconda, Deer Lodge County, District 19; Republican
• Chet Blaylock, Vice Chairman; Laurel, Yellowstone County, District 8; Democrat
• Bob Campbell; Missoula, Missoula County, District 18; Democrat
• Dorothy Eck; Bozeman, Gallatin County, District 13; Republican
• Donald R. Foster; Lewiston, Fergus County, District 10; Independent
• R.S. (Bob) Hanson; Polson, Lake County, District 17; Independent
• George H. James; Libby, Lincoln County, District 23; Democrat
• Rachelle K. Mansfield; Geyser, Chouteau County, District 14; Democrat
• Lyle R. Monroe; Great Falls, Cascade County, District 13; Democrat
• Marshall Murray; Kalispell, Flathead County, District 16; Republican
• Veronica Sullivan; Butte, Silver Bow County, District 20; Democrat

Committee Meeting Minutes Excerpts

Text of Final Proposal and Accompanying Committee Comments

Section 34. UNENUMERATED RIGHTS. The enumeration in this Constitution of certain of certain rights shall not be construed to deny, impair, or disparage others retained by the people.

Section 34 unanimously adopted (11 yaes) at Roll Call Vote.

The proposed Declaration of Rights was intended by the delegates to be a contemporary replacement of Art III of the 1889 Constitution; no existing rights were diminished at the expense of adding new protections.Id. at 618. In drafting Art II of the 1972 Constitution, the delegates were motivated by a particular spirit: “…the guidelines and protections for the exercise of liberty in a free society come not from government but from the people who create that government.”Id. at 619.

Section 34 was retained by the Bill of Rights Committee delegates, unchanged from Article III, Section 30 of the 1889 Montana Constitution. In the comments to the proposed Section 34, the Committee acknowledged the significance of the "unenumerated rights" provision, and its federal constitutional pedigree.Id. at 644. The Committee's tone was optimistic: "...this provision-- as well as the new rights provisions of this proposal-- is a crucial is a crucial part of any effort to revitalize the state government's approach to civil liberties questions."Id. The Committee considered recent "activity" surrounding the provision as a "sign that there [are] rights beyond those specifically listed," and offered that Section 34 may be the "the source of innovative judicial activity in the civil liberties field."Id.

Style and Drafting Committee Comments on Text

Comments on Style, Form, and Grammar: "Section 34. The substantive committee voted unanimously to preserve [this] provision unchanged."Report of Committee on Style, Drafting, Transition and Submission on Bill of Rights No. VIII, March 13, 1972, in II MONTANA CONSTITUTIONAL CONVENTION 968 (1972).

Debate on the Convention Floor

Beginning March 7, 1972, the Bill of Rights Committee brought its proposed Declaration of Rights to the floor of the Constitutional Convention, to be put to a vote. Delegate Wade Dahood, the Committee’s Chairman, introduced Article II to the convention delegates: “[the] proposed Bill of Rights for the state of Montana…promises to provide the citizens of the State of Montana with the finest, most expansive declaration of rights enacted by any state of the United States.”V MONTANA CONSTITUTIONAL CONVENTION; VERBATIM TRANSCRIPT 1634. Section 34 came before the Convention floor on March 9, 1972, offered by Committee Delegate Dorothy Eck. Eck explained to the Convention delegates that the provision was the same as Section 30 of the Bill of Rights in Montana’s current constitution, and the same as its counterpart in the federal Bill of Rights, stating that “I think that it is completely self-explanatory. There are rights which are not enumerated which the people of Montana should not be denied.” VI MONTANA CONSTITUTIONAL CONVENTION; VERBATIM TRANSCRIPT 1832. Convention Chairman Leo Graybill solicited discussion from the delegates regarding Section 34, and there was no debate.

Voting and Convention Adoption

On March 9, 1972, Section 34 was unanimously adopted by the Constitutional Convention Delegates.

Ratification

Before the 1972 Constitutional Convention began, there was concern among the delegates that bad press could “destroy [its] acceptance by the people.”Letter from Leo Graybill to Delegate Rachelle Mansfield, December 8, 1971, The Rachelle Mansfield Papers, SC 1899, Montana Historical Society Research Center, Archives. For Convention President, Leo Graybill, Jr., "portraying the right feelings about the important work of [the] Convention" was of grave importance.Id. In a letter addressed to Delegate Rachelle Mansfield, Graybill wrote: "...while we are doing our work, as the Convention progresses, the people of Montana must be both informed and involved. We, as the people's delegates, will have a duty to talk about the issues; to inform, educate, lobby and debate, and to involve ourselves and others."Id.

In a memo to all delegates dated March 13, 1972, Graybill sought the formation of a Voter Information Committee and the preparation of a Voter Information Pamphlet, encouraged media participation by delegates, and suggested other avenues for educating Montanans in preparation for the vote scheduled in June, 1972.Memo to All Delegates from Leo Graybill, March 13, 1972, The Rachelle Mansfield Papers, SC 1899, Montana Historical Society Research Center, Archives. In the final days before ratification, John H. Toole, the Chairman of the Public Information Committee, urged individual delegates to “do battle with the onslaught now being waged against us by opponents of the Constitution.”Memo to All Delegates from John. H. Toole, Chairman of Public Information Campaign, May 31, 1972, The Rachelle Mansfield Papers, SC 1899, Montana Historical Society Research Center, Archives. His call to action implored delegates to set up and run films continuously in public places, canvas flyers house-to-house, organize a “Get Out to Vote” campaign, make news clips for TV stations, watch opposition publicity and arrange for rebuttals, and place testimonial ads in local newspapers.Id.

Interpretation

[Interpretation includes cases, legislation, executive action, official speeches, and other materials applying the provision.]

Commentary

[Commentary includes post-ratification scholarship, reporting, and other commentary on the provision.]