Toward a historical understanding of Montana's privacy provision.

• Author: Rava, William C.
• Position: State Constitutional Commentary

1. INTRODUCTION

   Justice William Brennan urged state courts to employ independent reasoning when interpreting their respective state constitutions.(1) United States Supreme Court interpretations of the Federal Constitution, he argued, should not necessarily guide state court decisions or state constitutional law, regardless of whether state and federal provisions are similar.(2) For the last two decades, scholars and courts have taken up Brennan's battle cry, fighting with various degrees of success to give state constitutions independent vitality.(3)

   The State of Montana is illustrative. Montana courts have struggled to define a unique constitutional jurisprudence reflective of both the state's independence and its modern constitution.(4) Although scholars have argued vigorously for an independent interpretation of the Montana Constitution, the jurisprudential results have been inconsistent at best.(5) This Comment advances a historical understanding of Montana's constitutional privacy provision, suggesting that reliance on such a historical interpretation would result in more consistent and principled decisionmaking.(6)

   In Montana, fundamental principles of construction have guided state constitutional interpretation.(7) When interpreting the Montana State Constitution, the Montana courts have given effect to the intent of the framers(8) by subjecting the constitution to a `"broad and liberal interpretation.'"(9) If possible, the courts have begun and ended their inquiry with the plain meaning of the text.(10) If the meaning has not been clear or if there are ambiguities in the application of a particular constitutional provision to the facts of a case, the courts have consulted external sources.(11) The courts' ultimate purpose appears to be the realization of the framers' aspirations, making the records left by the framers themselves uniquely relevant.(12) Montana's courts, then, may consult the state's constitutional history.

   There are plenty of such historical records to inform the courts. The current constitution was adopted barely twenty-five years ago, and the framers left an exhaustive history of their deliberations.(13) All debates were well-informed, based on numerous studies and reports completed expressly for the drafting of this new organic document. Comparisons were drawn with the federal system, other states, and other countries; Montana's history was scoured for relevant lessons; memoranda were written; opinions were taken.(14) The preparation was, in short, thorough--even exhaustive.

   When the people of Montana adopted this new constitution in 1972, they included in their Declaration of Rights an explicit protection for privacy. Article II, Section 10 provides that: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."(15)

   As with other provisions, the convention delegates debated extensively both the inclusion and the specific language of this guarantee.(16) On a superficial level, the Montana courts now often cite to these debates when interpreting Section 10.(17) The courts, however, rarely dig any deeper.(18) As to the content--both substantive and procedural-of the privacy right, "giving effect to the intent of the framers" has become a hollow exercise indeed.(19)

   One commentator has already generally recognized this trend. Professor Powell noted that state constitutional history is often an academic "orphan child," ignored by scholars who instead focus on the history of the Federal Constitution.(20) This Comment argues that in Montana, the constitutional history is indeed an "orphan child," abandoned by Montana's courts.(21) Specifically, this Comment examines the history of privacy protections in Montana, arguing that the Montana Supreme Court's failure to embrace a historical understanding of Section 10 has resulted in an unprincipled privacy jurisprudence.(22) Part II argues that clear historical patterns emerge from both Montana's broader history of constitution-building and the more narrow debates focused on the adoption of an express privacy provision.(23) Part II also examines Montana's history and its lessons, arguing for a historical understanding of Section 10. Part III then examines two 1997 Montana Supreme Court privacy cases which discussed different interests implicated by the broader right.(24) Specifically, it scrutinizes a case involving autonomy interests, analyzes a search and seizure case, and examines the courts' analytical flaws and two practical consequences that flow from these problems. Part IV concludes briefly by summarizing the arguments made herein.(25)

2. TOWARD A HISTORICAL UNDERSTANDING: A BRIEF HISTORY OF CONSTITUTIONALISM IN MONTANA AND THE ADOPTION OF SECTION 10

   Montana is a young state. The United States first recognized it as a territory in 1864, but did not admit it into the Union as the forty-first state until 1889.(26) The Montana Constitution is also quite new; it was adopted in 1972, replacing the Statehood Constitution of 1889.(27) Montana has, then, a relatively brief record of self-governance and constitution-building. This history is nonetheless rich and can and should inform constitutional interpretation today.

   This Part presents Montana's short history; it addresses, generally, constitutionalism in Montana and, specifically, the adoption of the express privacy provision in Montana's modern constitution. It examines the three Montana Constitutions drafted in the nineteenth century(28) and analyzes the adoption of Montana's modern constitution, ratified in 1972.(29) Finally, it summarizes the lessons learned from this constitutional history, arguing that a historical meaning of Montana's privacy provision clearly emerges from both Montana's broader constitutional history and the more specific debates about the adoption of the modern constitution.(30)

   1. The Nineteenth-Century Constitutions

      Montana became a territory in 1864 in the midst of the national political crisis surrounding the Civil War.(31) The early years of Montana politics reflected the tumultuous times experienced by the entire nation.(32) The Organic Act,(33) which established the territory, allowed Montanans to elect representatives to a territorial legislature, but the President of the United States appointed all executive and judicial officials. As a result, battles raged between these two territorial branches for ultimate control over governance in Montana.(34) In the end, the "Federal Government still held its authority over the territory."(35) Party politics also contributed to this early political volatility.(36) Democrats and Republicans fought one another to control the social, political, and economic agendas for the new territory.(37)

      In the midst of this political tempest, Acting Territorial Governor Thomas Frances Meagher called for Montana's first constitutional convention in 1866.(38) Political pressures catalyzed this effort,(39) and, in less than a week, the delegates debated and finalized a constitution, reportedly borrowing extensively from other state constitutions, including those of Colorado, New York, and California.(40) Despite being politically expedient, this first constitution-building exercise illustrates Montana's early and persistent drive for statehood.(41) Only two years after territorial recognition, the people of Montana vigorously asserted their independence and demonstrated their desire for local rule.(42) The 1866 Constitution was, however, premature; Montana lacked the necessary population to even hold a ratification election.(43) Unfortunately, no copies of this document survive today.(44)

      A second convention was conducted in 1884.(45) The delegates to this convention debated for twenty-seven days and again agreed upon a constitutional text lifted largely from the constitutions of Colorado and California.(46) Montanans, whose state was experiencing rapid growth and pronounced prosperity, were still chafing under the yoke of the distant national government and their representation in Washington, D.C., where they had only one non-voting territorial delegate.(47) They were markedly dissatisfied with this arrangement: "Montanans were sick and tired of arbitrary gubernatorial and other territorial appointments."(48)

      The national government's lack of respect for individual rights topped the list of grievances.(49) The Preamble to the Montana Constitution that the delegates proposed in 1884, in addition to praising "the Great Legislator of the Universe," made clear that the primary object of Montana's government would be to guarantee security and allow for the development of individuality.(50) Article I of this constitution contained a Declaration of Rights, the first seven provisions of which replicated Colorado's Constitution.(51) "In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded," Section 7 of Article I declared:

      [t]hat the people shall be secure in their person, papers,

      homes, and effects, from unreasonable searches and seizures;

      and no warrant to search any place or seize any [sic]

      person or thing, shall issue, without describing the place to

      be searched or the person or thing to be seized, as near as

      may be, nor without probable cause, supported by oath or affirmation,

      reduced to writing.(52)

      The convention delegates put this constitution to a vote in November 1884, and steadfastly campaigned for passage.(53) In an election pamphlet, the constitution's proponents expressed their dissatisfaction with mere territorial status.(54) Their message to the electorate was clear. The federal government failed to adequately address Montanans' "wants and growing necessities;" only through "local self government" would true liberty be realized.(55) The constitution would guarantee rights by restricting the power of the legislature.(56) In the section addressing the...