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10
STATE DOCUMENTS
Montana
Constitatwnal
Convention
Studies
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Prepared By:
Montana
Constitutionat
Convention
CotnwnisHion
Bill of Rights
,/*"';■"" liffilSP
OCT OS 1998
SEP 8 2005
MONTANA CONSTITUTIONAL CONVENTION
1971-1972
BILL OF RIGHTS
By RICK APPLEGATE
CONSTITUTIONAL CONVENTION STUDY NO. 10
PREPARED BY
MONTANA CONSTITUTIONAL CONVENTION COMMISSION
MONTANA
CONSTITUTIONAL CONVENTION COMMISSION
COMMISSION MEMBERS
Chairman
ALEXANDER BLEWETT
Great Falls
CHARLES A. BOVEY
Great Falls
Viae Chairman
EUGENE H. MAHONEY
Thompson Falls
JACK S. BRENNER
Grant
MRS. FIRMAN H. BROWN
Missoula
ARTHUR C. HAGENSTON
Glendive
CHARLES L. HARRINGTON
Butte
CLYDE L. HAWKS
St. Xavier
C. EUGENE PHILLIPS
Kalispe II
R. H. "TY" ROBINSON
Missoula
CLYDE A. RADER
Hardin
LEONARD A. SCHOLZ
Dillon
WILLIAM G. STERNHAGEN
He lena
RANDALL SWANBERG
Great Falls
BRUCE R. TOOLE
Bil lings
DR. ELLIS WALDRON
Missoula
COMMISSION STAFF
DALE A. HARRIS
Executive Director
JERRY R. HOLLORON
Assistant Director
ROGER A. BARBER
Counsel
P. RICK APPLEGATE
Research Analyst
RICHARD F. BECHTEL
Research Analyst
JAMES T. GRADY
Research Analyst
BARTLEY 0. CARSON
Executive Secretary
JUANITA FONT ANA
Librarian
DEE ANN CHRISTIANSEN
Secretary
JANE B. JONES
Secretary
SANDRA R. MUCKELSTON
Counsel
KAREN D. BECK
Research Analyst
BRUCE R. SIEVERS
Research Analyst
KAREN C. NYBERG
Convention Arrangements
BEVERLY HILGER
Secretary
ALICE BERNER
Secretary
ROSEMARY S. ACHER
Secretary
GAIL M. SMITH
Secretary
PREFACL':
The delegates to the 1971-1972 Montana Constitutional Conven-
tion will need historical, legal and comparative information
about the Montana Constitution. Recognizing this need, the
1971 Legislative Assembly created the Constitutional Conven-
tion Commission and directed it to assemble and prepare
essential information for the Convention. This series of
reports by the Commission is in fulfillment of that respon-
sibility.
This study on the bill of rights was written by Rick Applegate,
research analyst on the Commission staff. The Commission
has authorized publication of the report as approved by the
Research Subcommittee on the Bill of Rights consisting of
Eugene H. Mahoney, Thompson Falls, chairman; Arthur C.
Hagenston, Glendive; R. H. "Ty" Robinson, Missoula, and
Leonard A. Schulz, Dillon. This report concerns not only a
study of the Declaration of Rights in the present Montana
Constitution but also an exploration of current civil liberties
questions .
The Commission extends its appreciation to those who aided in
the preparation of the study. This report is respectfully
submitted to the people of Montana and their delegates to the
1971-1972 Constitutional Convention.
ALEXANDER BLEWETT
CHAIRMAN
Our greatest present disloyalty to the Constitution
lies in the fact that we do not study and criticize
it as did the men who devised and adopted it. They
met novel and desperate situations by establishing
unheard-of and revolutionary forms of government .
We too are facing novel and desperate situations .
Shall we do as they did, or shall we hate and fear
those who follow their example? In the practical
answering of that question it will be revealed whether
the American experiment in freedom is still going on
or has already been abandoned.
Alexander Meiklejohn
TABLE OF CONTENTS
Page
PREFACE iii
SUMMARY 1
I. INTRODUCTION 15
II. HISTORICAL BACKDROP 23
INTRODUCTION 23
THE HERITAGE 23
EARLY ENGLISH DOCUMENTS 2 5
THE COLONIAL DOCUMENTS 2 6
THE REVOLUTIONARY PERIOD 29
THE EARLY "FEDERAL-STATE" RELATIONSHIP . . 33
THE 1787 FEDERAL CONSTITUTIONAL
CONVENTION 33
THE FEDERAL BILL OF RIGHTS 37
THE MONTANA DECLARATION OF RIGHTS 3 9
III. ARE STATES' BILLS OF RIGHTS NECESSARY? ... 47
POPULAR SOVEREIGNTY 4 7
FOURTEENTH AMENDMENT AND STATES 49
THE STATES AS "LITTLE LABORATORIES". ... 56
BREVITY, CLARITY, AND THE LENGTH OF THE
DECLARATION OF RIGHTS 57
CONCLUSION 58
IV. PREAMBLE AND POLITICAL THEORY PROVISIONS . . 65
PREAMBLE . 6 5
POLITICAL THEORY PROVISIONS 68
Page
INTRODUCTION 68
PURPOSE OF GOVERNMENT 7 3
POPULAR SOVEREIGNTY 77
INALIENABLE RIGHTS 80
CONSENT 83
FREE AND OPEN ELECTIONS 8 6
SEPARATION OF POWERS 87
PROVISIONS ON THE MILITARY 91
QUARTERING OF TROOPS 91
CIVILIAN CONTROL OF THE MILITARY ... 92
V. RIGHTS OF EXPRESSION AND SUBSTANCE 101
ASSOCIATION 101
LOYALTY OATH 104
RIGHT TO KNOW Ill
RIGHT TO BEAR ARMS 117
VI. PROCEDURAL RIGHTS AND ISSUES 129
INTRODUCTION 129
HABEAS CORPUS 13 0
DUE PROCESS OF LAW 133
DOUBLE JEOPARDY 136
SELF INCRIMINATION 14 0
THE MONTANA PROVISION 142
POLICE INTERROGATIONS 14 6
PROCEDURAL RIGHTS BRIEFS 150
EXCESSIVE BAIL AND DETENTION 152
Page
GRAND JURY 155
NATURE AND CAUSE OF ACCUSATION 159
TRIAL BY JURY 160
SPEEDY AND PUBLIC REMEDY 164
RIGHT OF COUNSEL 166
RIGHT OF CONFRONTATION 17 0
COMPULSORY PROCESSES FOR OBTAINING
WITNESSES 172
CONCLUSION OF FUNDAMENTAL PROCEDURAL
RIGHTS .■ 173
INCARCERATION AND THE ADMINISTRATION OF
CRIMINAL JUSTICE 174
INTRODUCTION 17 4
THE RIGHTS OF PRISONERS 17 6
RESTORATION OF RIGHTS AFTER COMPLETION
OF SENTENCE 17 8
CRUEL AND UNUSUAL PUNISHMENTS 179
CAPITAL PUNISHMENT 181
SAFEGUARDING RIGHTS IN ADMINISTRATIVE
PROCEDURE 187
SAFEGUARDING RIGHTS AGAINST PRIVATE
POWER 191
VII. PRIVACY AND ITS INVASION 215
SEARCHES AND SEIZURES 215
HISTORY 215
THE SUPREME COURT AND THE FOURTH
AMENDMENT 217
PROBABLE CAUSE 219
Page
THE FOURTH AMENDMENT IN CIVIL AND
ADMINISTRATIVE PROCEEDINGS 221
POLICE DETENTION AND INVESTIGATION . . 2 22
MONTANA'S SEARCH AND SEIZURE PROVISIONS. 225
WIRETAPPING AND ELECTRONIC SURVEILLANCE. 22 6
MONTANA AND ELECTRONIC SURVEILLANCE. . 23 2
THE CONTROVERSY 23 3
THE SOLUTION 234
RIGHT OF PRIVACY 237
VIII. ENVIRONMENTAL PROTECTION 249
INTRODUCTION 249
ENVIRONMENTAL BILL OF RIGHTS 250
ENFORCEMENT OF AN ENVIRONMENTAL BILL
OF RIGHTS 254
EMINENT DOMAIN 263
CONCLUSION 27 7
IX. MISCELLANEOUS PROVISIONS 2 87
UNENUMERATED RIGHTS 287
SOVEREIGN IMMUNITY 289
IMPRISONMENT FOR DEBT 294
TREASON 295
X. NEW PROVISIONS 301
RIGHTS OF PERSONS UNDER THE AGE OF
MAJORITY 3 01
EQUAL PROTECTION AND FREEDOM FROM
DISCRIMINATION 306
RIGHTS OF ALIENS 306
Page
INVOLUNTARY SERVITUDE 3 07
EQUAL PROTECTION OF THE LAWS 3 08
FREEDOM FROM DISCRIMINATION 3 09
CONCLUSION 312
CONSUMER PROTECTION AND THE CLASS ACTION
SUIT 313
THE FRUSTRATED CONSUMER 313
THE CLASS ACTION 315
XI. CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS . 325
LOW INCOME PERSONS AND THE BILL OF RIGHTS. . 32 5
PROCEDURAL RIGHTS AND THE LOW INCOME
PERSON 325
THE NEW PROPERTY AND PUBLIC ASSISTANCE
RECIPIENTS" RIGHTS 328
PUBLIC ASSISTANCE 329
DUE PROCESS IN THE ADMINISTRATION OF
PUBLIC ASSISTANCE 331
THE SUBSTANTIVE RIGHT TO THE NECESSITIES
OF LIFE 334
POPULATION CONTROL AND THE BILL OF RIGHTS. . 33 8
INFINITE GROWTH ON A FINITE PLANET .... 338
COMPULSORY LIMITATION OF POPULATION SIZE:
SOME POTENTIAL RIGHTS ISSUES 341
VOLUNTARY LIMITATION OF POPULATION SIZE. . 343
ABORTION, MONTANA LAW AND THE
CONSTITUTIONAL CONVENTION 347
XII. CONCLUSION
357
Page
APPENDICES
A. MONTANA CONSTITUTION: PREAMBLE AND
DECLARATION OF RIGHTS 3 61
B. 1884 MONTANA CONSTITUTION: PREAMBLE
AND DECLARATION OF RIGHTS 367
C. THE VIRGINIA DECLARATION OF RIGHTS. . 373
D. FEDERAL BILL OF RIGHTS AND THE
THIRTEENTH AND FOURTEENTH
AMENDMENTS 377
E. SELECTED RIGHTS PROVISIONS 381
SELECTED BIBLIOGRAPHY 423
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SUMMARY
CHAPTER I
INTRODUCTION
At the outset it should be made clear that a summary cannot
ordinarily accomplish what an entire report intends; this
is especially true in this case. The report which follows
is itself only an exploration of the multitude of questions
in the civil liberties field. As noted in Chapter I, the
report is not and could not be definitive. Chapter I also
contrasts the tone of necessity accompanying the adoption
of the federal Bill of Rights with the widely noted apathy
that is behind much of the civil liberties debate today.
However, increasing pressure from all corners of the society
makes the area and its issues challenging.
CHAPTER II
HISTORICAL BACKDROP
This chapter is a brief essay on some of the historical roots
of the constitutional guarantees of civil liberty. Unfor-
tunately, the essay concentrates on the documentary and
conceptual aspects of this history to the detriment of the
political climate, configurations and attitudes that always
underlie the form in which the guarantees appear on paper.
Much of the political quality of the civil liberties area —
for example, the fact that the initial step in the recognition
of certain guarantees was often with minorities and political
outsiders--is lost thereby.
Mention is made of two of the timeless principles from
classical antiquity that surfaced in the colonial period's
surge of bill of rights drafting: the notion that law needs
an external legitimation — that it is not obligatory merely
because it is law — and that the source of the legitimacy is
the intuitive common sense of all men, rather than the special
province of an elite or a class. Two early English documents —
especially the Magna Carta — are discussed as an effort to sub-
ject the rulers to the law as enacted. Some sense of the
shape of colonial concern in certain rights areas can be
gleaned from the section describing the rights provisions of
early colonial charters and enactments. The most fertile period
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SUMMARY
of civil liberties enactments — a period primarily important
for the growth of a genuinely public spirit — was the revol-
utionary period. During this period leading up to the split
with Great Britain, the colonists responded to various
denials of the rights of Englishmen with a number of colonial
and federal statements of civil liberties.
The main impetus for guaranteeing civil liberties during this
time rested with the states. It was not until after the break
with England, when certain anti-Federalists became concerned
with what they felt was an intolerable concentration of power
in the newly created central government, that clamor rose for
a federal Bill of Rights. The 1787 U.S. Constitution was
drafted to strengthen the weak national government created by
the Articles of Confederation. In order to secure ratification
of the Constitution, several state conventions had to recommend
civil liberties provisions to be appended to the document.
When the first Congress met, James Madison pushed a list of
proposals that eventually became the first ten amendments
to the Constitution — the Bill of Rights. It is noted that
Madison understood this list to be only a distillation of
rights ideas from the various state declarations and not a
full-blown federal commitment to civil liberties questions.
In part to keep the federal government from assuming that
specifically enumerated rights were the only ones that needed
to be respected, Madison included a provision announcing
that there were other rights not enumerated which the newly
created government was bound to respect.
This chapter concludes with a brief note on the nearly verbatim
adoption of the Colorado Declaration of Rights into the 18 89
Montana Constitution. The few cases where there was a
departure from the Colorado wording are analyzed in the body
of the report.
CHAPTER III
ARE STATES ' BILLS OF RIGHTS NECESSARY?
This chapter explores the contemporary function of state
declarations of rights. Although it does not appear to be
seriously alleged anywhere that state declarations of rights
are valueless, there are several considerations that
bear on the necessity and potential of state activity in the
civil liberties area. First, there is little chance that a
political society, no matter how committed to the principle of
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SUMMARY
popular sovereignty, would be well served by aborting vigorous
efforts at all levels of government to insure, on the one hand,
that individuals and associations are protected from govern-
mental abuse and, on the other hand, that minorities are
protected from the unchecked power of majorities. These are
the two main functions that written declarations of rights
were drafted to perform, for there are serious and complex
legal and political problems in the civil liberties field
which probably could not be handled without specific safe-
guards to guide the resolution of the rights questions which
arise.
There is some uneasiness about the current ascendancy of the
federal government in the civil liberties area. On the one
hand there are those who contend that in doing so, the federal
government has usurped functions that properly belong to the
states. They can cite impressive history to back up their
contentions that the states should be the prime guarantors
of civil liberties. On the other hand there are those who
allege that it was the failure of the states to exercise
this function satisfactorily that made it imperative that
the federal government intervene in the first place. These
commentators do not deny that the states could and should
have the primary role in protecting civil liberties; rather,
they contend that there was no state function to usurp at the
time the federal government stepped in.
The main vehicle by which the federal government has set
minimum standards with which the states must comply in civil
liberties safeguards is the Fourteenth Amendment. This
amendment, passed after the Civil War, guarantees to state
citizens "due process of law," all the privileges and
immunities of citizenship and the "equal protection of the
laws." Under these clauses, the federal judiciary has,
over the years, accomplished a halting and as yet incomplete
extension of the federal Bill of Rights guarantees to state
behavior. The fact that not all the federal provisions are
binding on the states and that the federal ascendancy is
never definitive for all time indicates the danger of assuming
that citizens are adequately protected by the provisions of
the federal Bill of Rights.
Whatever the extent of the federal dominance in the civil
liberties field, it is important to remember that the federally
enunciated standards are only minimum safeguards. The states
are free--and have been encouraged by the U.S. Supreme Court--
to go beyond the federal standards at any point where it is
believed that citizens might better be protected.
Coupling the historical fact that Madison, in drafting the
federal guarantees, did not intend to supplant the pre-existing
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SUMMARY
state guarantees — he borrowed heavily from them in distilling
what became the federal Bill — with the contention that modern
society demands greater civil liberties protection than the
relatively unindustrialized eighteenth century American col-
onies, the potential for vigorous state action becomes a bit
clearer. Perhaps it is true that the contemporary period
requires more than the admirable list of protections drafted
for colonial America. If so, the states could function to
test a number of potential new rights — a function quite
difficult, if not impossible, at the federal level. States
could set examples for each other and for the federal govern-
ment by testing these rights in their smaller jurisdictions
without having to set in motion the somewhat unwieldy and
awesome federal amendment procedures. In this way, the
states could fulfill a function that they lost over time:
the vigorous enforcement and extension of safeguards of civil
liberty.
One final concern is the at once compelling and dubious
contention that state constitutions ought to be short in the
interests of clarity and conciseness. A sensible and seem-
ingly self-evident suggestion such as this, however, is not
without costs and even dangers, especially in the area of
civil liberties. A sound declaration of rights is not
necessarily short, nor should its provisions all be approx-
imately the same number of words.
CHAPTER IV
PREAMBLE AND POLITICAL THEORY PROVISIONS
Chapter IV indicates the timeless and fundamental nature of
the principles of democratic political theory, principles
whose language and meaning derive not only from the period
of the American revolution but from political literature from
the classics to the contemporary revival of political theory
and discourse. The background and potential of the introductory
statement to the constitution — the preamble--as a kind of
announcement of the positive goals of government is discussed.
In examining the political theory provisions and concepts,
special consideration is given to the colonial understanding
of the principles and the contemporary reassessment of the
meaning and significance of the principles of democratic theory;
this is in response to the commonplace axiom (almost without
exception) that the best, most valuable thinking on political
questions occurs in periods of social and political stress.
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SUMMARY
The arguments on the question of including statements of
political theory in state fundamental law are considered.
To the assertion that the declaration of rights ought
to contain only judicially enforceable rights, it is answered
that declarations do not exist merely to announce rights which
the judiciary can protect; it is said that the function of
a declaration of rights is also to announce in broad and
theoretical terms the principles upon which government functions,
This section is followed by brief discussions of the following
principles of political theory: the purpose of government,
the principle of popular sovereignty, the inalienable
rights, consent of the governed, the principle of free
and open elections, separation of powers and the various
provisions asserting civilian control of the military. Each
of the concepts is treated as a timeless principle of the
sort which has informed political assessments, actions and
structure across history.
CHAPTER V
RIGHTS OF EXPRESSION AND SUBSTANCE
This chapter deals with three issue-areas related to the
freedom of expression. The first, the right of association,
has a long history in the writings of political theory and was
announced nearly fifteen years ago by the U.S. Supreme Court
to be a fundamental right. The right of association is an
example of rights which are designed not to protect groups
with which the majority agrees easily, but to protect those
which are associated in politically dissident minorities.
The fact that historically the church, unions and civil rights
groups were all such politically dissident — and disparaged —
minorities indicates the necessity of such a right.
The political loyalty oath has been popular and widespread
for a number of centuries. In recent times it has come under
scrutiny as to its efficacy and, more important, for its
potential dampening effect on the critical inquiry essential
to an open society. The recent court analysis of such oaths,
the Montana experience with them and the analysis of oaths
by political philosophers are explored. An indication of the
current activity in the area of political loyalty oaths — apart
from the recent activity in the Montana legislature — is a court
ruling handed down as this report went to print that the
Montana teacher's loyalty oath is unconstitutional.
-5-
SUMMARY
A fairly recent area of heightened concern — closely allied
with the value of a free and critical press — is the question
of the openness of state government operations, the citizen's
right to know. An old principle of democratic theory — one
which still is relevant in that it speaks to a contemporary
problem of some magnitude — is that the activities of government
should be public and that the citizen should not be hindered
in his efforts to scrutinize governmental operations. This
problem probably has become more acute in part because of
the increasing complexity of government at all levels. But
the main reason for recent statutory activity in this area
is the propensity of administrative agencies to refuse to
disclose some of their activities for a variety of reasons,
not all of which are consistent with the right to know.
The federal and Montana statutory activities and their
limitations are explored, together with the potential of a
broad disclosure-oriented state constitutional provision.
The final right discussed has been the subject of heated,
if not altogether informed, contro\'ersy over the past few
years. The right to bear arms announced in an effort to
prohibit the king from disarming Protestants in the seventeenth
century is protected in the Montana Constitution in strong
wording. Although such a provision probably restricts the
types of legislation which can be passed by the state
legislature regulating firearms, it does not and, because of
the supremacy clause of the U.S. Constitution, cannot limit
the similar powers of the federal government.
CHAPTER VI
PROCEDURAL RIGHTS AND ISSUES
This chapter deals with the broad principles and specific
rights designed to protect the individual in various stages
of procedure against him, usually legal procedure based on
criminal accusation. In fact, it can be said that the estab-
lishment of the procedural safeguards discussed here laid the
groundwork for the ideal of an accusatorial system of justice
which presumes that the accused is innocent and places the
burden of proof on his accusers. It is noted that although
the common assumption is that substantive rights of, say,
expression and assembly are most fundamental, they would be
virtually useless without the existence of a known and fair
system of adjudication for breaches of the law. Among the
major principles of procedural fairness discussed are due
process of law, the writ of habeas corpus, the right against
self-incrimination and the protection against being twice
-6-
SUMMARY
placed in jeopardy for the same alleged offense. Other
procedural rights found in the Montana Constitution include
the right to be free from excessive bail and unreasonable
detention, the right to a speedy and public remedy, the right
to be tried by a jury, the right to be represented by counsel
or to represent one's self, the right to confront and cross-
examine one's accusers, and the right to have processes for
compelling the attendance of witnesses on a defendant's
behalf. All these provisions are valuable insofar as they
maintain the accusatorial nature of the trial process and
redress the disparity between the resources of the government,
which prosecutes, and of the defendant.
In addition to these brief discussions of the fundamental
procedural rights, three other rights areas which have
procedural as well as substantive implications are explored.
The first deals with the problem of incarceration in the
system of criminal justice. Subjects for consideration in
this area include the substantive and procedural rights of
persons incarcerated, the restoration of any substantive or
procedural rights denied upon conviction or incarceration and
the capital punishment controversy. Perhaps the only way to
deal with the rights of persons incarcerated is to review the
written and unwritten regulations of institutions to which
persons are sentenced or committed to see if there exist
denials of civil liberties not necessitated by incarceration.
Specifically on the questions of restoring rights to felons
after completion of sentence, a review of the unclear statutes
and Board of Pardons procedure may be in order. The capital
punishment question deserves consideration beyond the brief
treatment it receives here. The contemporary trend toward
its abolition is indicated by the fact that Montana and a
number of other states, while still having it on the statute
books, have not used it for a number of years.
A second issue-area dealt with is the problem of extending
fundamental civil liberties safeguards to cover administrative
hearings and legislative investigations. Concern in this
area is in response to the increasing size and potential for
abuse of discretion of bureaucracies within the executive
branch of state government. Several possible constitutional
provisions are discussed in this connection.
The final area discussed is the emerging trend toward safeguarding
substantive and procedural rights against abuse by private centers
of power. The first constitutional example of this type of
provision was the federal Thirteenth Amendment, which prohibited
private persons from having slaves as property. Beyond that,
the notion that enunciated rights should protect citizens from
all centers of power is quite old. Recent activity in the area
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SUMMARY
has centered around the federal government and the rights of
members to adequate representation in democratic unions. With
the increasing number and import of contacts that citizens
have with large private institutions — union and corporatc--
thc safeguards of civil liberties against private^ jiowor may
become most important in civil liberties activity in I hi- iioar
future.
CHAPTER VII
PRIVACY AND ITS INVASION
Increasing concern is evident over the sphere of citizen
privacy and the potential of a highly developed society for
invading it. Central to this issue is the traditional consti-
tutional protection against unreasonable searches and seizures,
which was especially advocated in the colonial period in the
face of the British practice of invading colonists' homes with
general warrants to search for goods which violated British
trade acts. The U.S. Supreme Court, in interpreting the
federal Fourth Amendment — which prohibits unreasonable searches
and seizures--has announced that information or items seized
in an unreasonable search and seizure are not admissible as
evidence in a trial. The requirement that probable cause be
established prior to obtaining a search warrant is briefly
discussed here, as are the application of the search and
seizure provisions to civil and administrative proceedings
and the police practice of "stop and frisk." An indication
of the kinds of rulings that the Montana Supreme Court has
handed down on searches and seizures also is offered.
One of the most pressing problems in the contemporary privacy
situation is the high potential for abuse of wiretapping and
electronic surveillance. The U.S. Supreme Court has demonstrated
the complexity of the problem by changing its stand more than
once on various interceptions of private communication. The
court opinions and their dissents over a period of forty years
provide a good background for the communications interception
debate. Two federal statutes — the Communications Act of 1935
and the Omnibus Crime Control and Safe Streets Act of 1968 —
also reflect an effort to balance the federal prosecution of
crime with the fundamental right of privacy. Only recently
has there been pressure to permit state officials to obtain
wiretap authorization. This proposed extension is a civil
liberties issue of some magnitude; as many commentators have
argued, there is great potential for abuse of such authority
by state officials. Several alternatives for state constitu-
-8-
SUMMARY
tional activity in the area are discussed. Of paramount
importance prior to establishing wiretap authority is estab-
lishing that there are certain and compelling reasons for
Montana officials to obtain such authority and that they
would use it consistent with constitutional rights.
To facilitate primarily the judicial wrestling with privacy
questions, various suggestions have been made concerning a
broad statement of the right of privacy at the level of
the state constitution. The right to be free from politics
is perhaps the oldest and most significant right of western
civilization. Since a famous essay written by Samuel Warren
and Louis Branaeis near the turn of the century, there has
been much activity in this area. More than half of the states
have recognized the right of privacy — Montana is one — and in
196 5 the U.S. Supreme Court announced the right as being
fundamental. Various alternatives for a right of privacy
provision are discussed.
CHAPTER VIII
ENVIRONMENTAL PROTECTION
This chapter concerns the potential for constitutional statements
relating to protecting the quality of the environment. Four
main areas are explored: the right to a healthful, unsullied
environment; the alternatives for enforcement of such a right,
and two closely associated principles, the power and rights
associated with eminent domain proceedings and the potential
of the public trust doctrine as a blanket protection against
abuse of the environment.
The right to a healthful, unsullied environment is an increas-
ingly common state constitutional provision. The scope of
such a right is indicated by a discussion of the effort to
derive it from the existing federal Bill of Rights. Various
wordings for such a provision are discussed.
It also is noted that by itself the enunciation of the right
to a healthful, unsullied environment would not amount to much
unless it was made clear who was bound by the right and unless
there was some explicit delegation of enforcement power.
Several alternatives exist for the enforcement of environmental
bill of rights provisions. One increasingly employed by
nearly every legislature in the country with varying degrees of
commitment and success is simply to enact statutes to protect
the environment. But there is much concern in recent times that
-9-
SUMMARY
this approach to environmental protection does not have as
much direct impact as it might because of increased admin-
istrative discretion. In fact, the concern over abuses of
discretion by administrative agencies--removed from public
scrutiny — is not confined to environmental issues, but is a
crucial problem for administrative law in general. Two
responses are increasingly common to this problem. One is
the creation of administrative agencies--sometimes with
ombudsman-type powers of intervention and enf orcement--whose
sole function is to protect environmental quality. Montana
has created such an agency with recommendatory and impact-
assessment powers. Another response has been to supplement
the legislative and administrative powers of dealing with
issues of environmental importance by granting citizens the
right to sue governmental agencies and private concerns to
enforce state environmental quality policies. This supple-
mental citizen enforcement power is being adopted by a
steadily increasing number of states. Some of the arguments
surrounding its efficacy are discussed in this chapter,
and it is noted that the enunciation of an environmental
right and citizen enforcement powers would necessitate some
statutory embellishment in order to supplement whatever
broad statements might be placed in the constitution. This
is true of a number of other rights areas where there is the
possibility of including a broad statement of intent and
direction in the constitution. The question is not whether
the issues are statutory or constitutional; clearly they are
both. The constitutional law announces the fundamental intent;
the statutory provisions add details in compliance with the
constitutional expression.
The state's power and the private rights associated with
eminent domain are a virtually undigestible body of law;
constitutional history of public uses for eminent domain
purposes and increasing concerns about the environmental
impact of eminent domain activities are discussed in this
chapter. It is noted that the delegates to the 1889 Con-
stitutional Convention were not at all clear that what they
were calling public uses were really public; this suggests
a review of the activities classified as public by the
Constitution and by later statutes might be in order.
Several principles within the concept of eminent domain
are suggested as mitigating influences on the adverse envir-
onmental impact of many eminent domain actions. One of these,
the public trust doctrine, is stated in indirect form in
the present Montana Constitution; it potentially is the
broadest form of constitutional protection of the environment.
The essence of the doctrine is creation of a trust-beneficiary
relationship, with the environment being the trust and the
-10-
SUMMARY
public the beneficiary. The environmental trust is administered
by the state to insure the continued quality of the trust in
perpetuity. The public, as beneficiary, is accorded the right
of protecting its interest in the trust.
The public trust doctrine operates on the same principle as
the power of eminent domain; it announces that there are
paramount considerations which can override private property
rights in case of environmental abuse. The power of eminent
domain is the long-recognized power of the state to override
private interests--with just compensation provided in advance--
for public necessity. What the public trust doctrine amounts
to, then, is an extension of eminent domain-type governmental
powers and public rights to the protection of the environment.
In the case of both, the rights issues involve a proper bal-
ancing of the public good with the property rights of private
individuals .
The chapter concludes with a warning that there are no easy or
final solutions to the crisis of deteriorating environmental
quality. In a society which has yet to seriously consider
restricting economic growth, it is inevitable that the choices
will be difficult and the contradictions appear unyielding.
CHAPTER IX
MISCELLANEOUS PROVISIONS
This chapter discusses three well-established provisions in
American constitutional history: the unenumerated rights
doctrine, provisions on treason and the prohibitions on debt
imprisonment. The unenumerated rights provisions found in the
federal Bill of Rights and the Montana Declaration of Rights
originally were drawn to keep the specific list of civil lib-
erties safeguards from becoming final; that is, a conscious
effort was made to announce that there were rights that
governments were bound to respect beyond those specifically
enumerated in bills of rights. This principle, virtually
ignored for some time, finally is becoming the main impetus
in the recognition of new rights.
A brief discussion of the provisions prohibiting debt imprison-
ment emphasizes the potential constitutional alternatives to
the current Montana provisions. Perhaps the most widely
used alternative exempts a certain amount of a debtor's
property so that he may retain the necessities of life in the
face of debt action.
-11-
SUMMARY
Treason provisions were incorporated in various constitutions
with a view to severely restrict the use of criminal prosecu-
tions for treason to dampen political dissidence. The colo-
nists were well aware of the abusive potential of accusations
of treason; their concern is reflected by the fact that
state constitutions contain nearly verbatim wordings on the
subject.
One other area of consideration is sovereign immunity. The
basic question in this area is should the state be able to
claim sovereign immunity and thereby halt suits against it for
negligence or other torts? Does the doctrine of sovereign
immunity mitigate against the constitutional principle that
there should be a judicial remedy for all injuries of person
and property? Is the current Montana statute limiting actions
against the state to the amount of insurance coverage ill-
advised in the sense that it does not compel state agencies
to carry any more insurance than they deem necessary?
CHAPTER X
NEW PROVISIONS
This chapter discusses three potential rights issues on which
the Montana Constitution now is silent. The first of these
is a relatively new area, the rights of persons under the age
of majority. There has been considerable activity in this
field, mainly concerned with the procedural rights accorded
young people in juvenile courts. But the increased court and
statutory activity has not changed the fact that there are
not even the broad outlines of types of rights young people
possess. Young persons are not guaranteed even the procedural
rights which are deemed fundamental to a person accused of
a criminal act. Several constitutional provisions--the
products of efforts by a number of Montana groups concerned
with the issue--are discussed in this chapter.
The second area considered is one that has been a continuing
civil liberties preoccupation since the beginnings of the
American republic. The Montana Constitution currently con-
tains no provisions on equal protection of the laws or the
freedom from discrimination; it does contain two provisions
of doubtful necessity, the rights of aliens and the protection
against involuntary servitude. These two provisions are dis-
cussed briefly in relation to equal protection of the laws and
the freedom from discrimination.
-12-
SUMMARY
State constitutional provisions on equal protection of the
laws are only an affirmation of the federal Fourteenth Amend-
ment; that amendment binds the states to guarantee equal pro-
tection of the laws to all. A potentially broader application
of the equal protection principle could be obtained if the
state constitution specified some areas apparently not covered by
the federal Fourteenth Amendment — for example, that equal
protection of the laws should not be denied on account of
sex or status of income. Such a protection afforded to
all regardless of sex would anticipate the federal Equal
Rights Amendment, currently bottled up in Congress. Announce-
ment of equal protection regardless of income status would be
a step toward providing that a person would have adequate
procedural rights amenities regardless of income.
Of even greater potential are the alternatives for guarantee-
ing freedom from discrimination. Various constitutional alter-
natives are discussed, perhaps the strongest of which is a
guarantee that one who believes he is being discriminated
against has the- right to enjoin the discriminatory practice.
CHAPTER XI
CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
This chapter indicates the potential rights issues within
two broad areas of contemporary concern: population growth
limitation and access to social services, particularly the
necessities of life. These areas increasingly have been the
subject of discussion in the literature on civil liberties in
recent years; both have direct relevance to traditional
conceptions of civil liberties. In addition, perhaps this
chapter suggests the potential rights impact of a number of
other contemporary political issues. Hopefully, it indicates
that the civil liberties field is implicated in any number
of political issues and is an open-ended area with many
unanswered questions beyond the traditional civil liberties
contained in the federal Bill of Rights.
The rights possessed by persons with low incomes are discussed,
Recent activity in the area of indigent criminal procedure and
previously mentioned guarantees of the equal protection of the
laws to all regardless of income also are discussed. The
continuing preoccupation with the procedural rights of social
services recipients is used to introduce a discussion of a
potential substantive right to the necessities of life. This
is discussed in the context of the new kinds of property--
-13-
SUMMARY
government subsidies, licenses, franchises and benefits — which
have proven difficult to handle in the context of gratuity and
may need at least a presumption of entitlement if their arbi-
trary denial is to be avoided. Constitutional alternatives
with respect to guaranteeing all citizens access to the necess-
ities of life also are discussed.
The final essay deals with the potential tensions between
the increasingly recognized need to limit the unchecked growth
of population and traditional civil liberties. It is noted
that the population problem — often conceived to be serious
only in developing nations — is especially critical in affluent,
consiimptive societies, even though they may have a very small
population growth rate; for it is in the advanced industrial
nations of western Europe and America that the greatest share
of the world's finite resources is consumed in a way that is
open to challenge as to its necessity and desirability. It is
suggested that the current court interpretations of the
conflict between an unlimited right of procreation and the need
to limit the growth of population probably would permit
compulsory family limitation or at least would allow family
limitation incentives, if they applied equally to all classes.
Various alternatives do exist for voluntary limitation of popu-
lation growth. Of these, the questions surrounding the right
to an abortion have attained constitutional status and are
explored. The potential and the problems of a state constitu-
tional statement on the abortion question are discussed. Also
offered is the alternative of a broad statement of intent to
check the unlimited growth of population. Such a statement
could recognize and commit the state to a resolution of the
problem of unchecked population growth and would leave the
specific choices for its resolution for statutory explication.
CHAPTER XII
CONCLUSION
The beaten paths of preconceived ideologies can have a dam-
pening effect on the critical assessment state constitutions
deserve and demand. It is noted in this chapter Miat the
type of judgment required to assess the proper content and
thrust of fundamental law is not strictly of a legal type.
The thought of all intellectual disciplines coupled with
intuitive notions of what constitutes a just political
society are the best guides.
-14-
CHAPTER I
INTRODUCTION
The Bill of Rights epitomizes one of our history's
most noble and enduringly important themes, the
triumph of liberty, yet has been one of the most
neglected subjects of historical scholarship.
There is no satisfactory study of the origins
and framing of the first state bills of rights,
nor of the national Bill of Rights; there are
few studies of particular rights.
Such a statement, made by one of the foremost constitutional
historians living today, should give pause to anyone examin-
ing, let alone revising, the written guarantees embodied in
a declaration of rights. In Montana, one may be somewhat
further hampered by the fact that in the 1889 Constitutional
Convention (and in 1884) there was no learned debates on
most provisions.
In addition, the fact that the Montana provisions were not
original and that there has been almost no Montana scholar-
ship in this topic compels search elsewhere for material
that hopefully will give this round of consideration some
firm footing.^
Lester Mazor has noted the "shock . . . felt by the woodshed
type of legal scholar, that is, the kind who lacks an army
of research assistants or a battery of subcommittees for
his support,"^ when approaching the study of constitutional
liberties .
The Montana Constitutional Convention Commission had neither
the army nor the battery, and time and other limitations
necessarily narrowed the scope and depth of what follows.
No claim can be made that it is final or definitive.
However, if it offers some guidance and more provocation to
those revising the Montana Constitution it will have served
its purpose.
Several other sources deserve careful reading for their in-
sights and errors. Those include the Legislative Council
study of the Montana Constitution; the brief report of the
Constitution Revision Commission; the bill of rights
chapter of We, The People . . . by Lucile Speer; Robert
Rankin's booklet on the Bill of Rights, and the Hawaii
Constitutional Convention study on the Bill of Rights . ^
-15-
INTRODUCTION
II
On July 4, 1951, the Madison, Wisconsin, Capital-
Times sent out two reporters to ask people en-
countered at random to sign a petition saying
that they believed in the Declaration of
Independence. Out of 112 persons interviewed,
all but one refused to sign. The common
ground of refusal was not the obvious fact
that such a petition is useless. "They were
afraid," the newspaper reported, "that it was
some kind of subversive document and that they
would lose their jobs or be called Communists."
This inspired the New York Post to circulate a
similar petition and the big city with its
foreign-born population did little better.
Nineteen out of 161 were willing to sign, but
the prevailing reaction was "suspicion, distrust
and hostility. "6
No doubt, since 1951 some resurgence of political vitality
has occurred in the United States, particularly in the
middle and late 19606. Still it may be that "far fewer
than half of the American people have the remotest idea of
what their personal and political rights embrace. "^
Robert M. Morgenthau recently cited the remarks of Justice
William Brennan, Jr. , of the United States Supreme Court
deploring the fact that many young people know little or
nothing about the first ten amendments to the United States
Constitution, and that of those who do know, many no longer
have confidence in the guarantees expressed there. Morgenthau
went on to say:
It is easy to concur with Justice Brennan 's
evaluation of the situation, and at the same
time, to offer one addendum. Ignorance of the
history and nature of our constitutional rights
and responsibilities, lack of conviction in its
potency, are not limited to the young. The
first ten amendments to the Constitution of the
United States, like the Ten Commandments, are
blithely assumed to be the cherished possession
of every American. Yet, this is far from the
case. 2
Where one of tho universally avowed principles of a viable
r('}>vib1ic (It) Li.iy nothin<i >it ii dnnoi-r >icy ) is .in at't ivi< ami
-16-
INTRODUCTION
informed citizenry, this lack of awareness becomes dis-
couraging and, perhaps, symptomatic. Various political
philosophers9 have scratched fertile ground in attributing
the causes of an inactive citizenry to an eclipse of the
possibilities of effective citizen participation, the
distractive (as opposed to informative) qualities of mass
media, the habit of circumventing political issues and
answers in a style designed to conceal more than it reveals,
increasingly insulated bureaucratic expertise, and on and on.
Their arguments need not detain us here. What should be
noted, however, is that this loss of public understanding
and appreciation of the fundamentals of the American poli-
tical discourse puts anyone approaching the study of con-
stitutional questions at a disadvantage.
It is disconcerting to note the contemporary apathy surround-
ing constitutional expressions of civil liberties, authored
as they were by men who were well aware of the necessity of
their work. Bernard Bailyn has discussed the unequalled
outpouring of literature and polemic that informed the
American Revolution. 10 Others have written of the scholarly
turn of American constitution-makers in searching out the
principles of "the constitution of power" and their unequalled
knowledge on the subject of civil liberties. H
Indeed, the only substantial criticism levelled at the
authors of the American Constitution (apart from the expres-
sions of "shame and distrust toward Founding Fathers who
tolerated slavery, exterminated Indians, and blandly assumed
that a good society must be based on private property") is
the seemingly unaccountable delay in the mention of a pos-
sible federal bill of rights at the Federal Constitutional
Convention of 1787. ^^ To be sure, this delay provided good
fuel for certain anti-Federalists who were suspicious and
afraid of the Federalist plan of government to a greater
extent than they were concerned with the absence of written
guarantees of liberties. But even that seemingly "too little,
too late" concern with civil liberties at the 1787 Convention
has sound justification in that period's civil liberties
situation: the existing state bills of rights were seen by
many to be an adequate safeguard for these liberties. The
Federalists, especially the dynamic James Wilson at the
Pennsylvania ratifying convention, went to great lengths
arguing that a federal bill of rights was not necessary as
the newly created government had, he said, no powers relat-
ing to civil liberties.
-17-
INTRODUCTION
That the Federalists were to be proven wrong by history on
the point of federal government powers over civil liberties
is not overwhelmingly important. What is discouraging,
given the colonial agitation for a bill of rights, is the
indication that the contemporary period may not have an
intuitive commitment to those guarantees. As the American
Bar Association has lamented "it is chilling to learn from
a recent poll that a majority of Americans are willing to
restrict freedoms guaranteed by the Bill of Rights. "13
That, and the above-mentioned lack of reliable, in-depth
work on the subject, does not make the declarations of
rights any less compelling an object for study and concern,
however. Perhaps it is true that in the last analysis
the practical reason why civil liberties as
traditionally defined and defended do not
interest the American is that they are inade-
quate to express the true dimensions of the
problem of freedom and justice today. 1^
Going somewhat further afield, perhaps the central political
dilemmas of the modern age are not in the area of essentially
personal liberties, but rather fall within the recently
emerging debate over public freedom. 15 However, even admit-
ting that the questions surrounding the conventional civil
liberties are not the central issues, there is still good
reason for careful work in the area. It has been noted that
liberties of whatever dimension "evaporate rapidly in the
presence of unchecked governmental power. "16
That fear of governmental power (v/hich mistakenly has been
conceived to be the central tenet of the Jeffersonian bias)
and the fear of the power of unchecked majorities were com-
monplace in the thinking of the Founding Fathers. Concern
with the excesses of governmental power coupled with the
knowledge that the rights of minorities were always insecure
in the face of a majority led James Madison, the eventual
"father" of the Bill of Rights, to say that the federal
republic of the United States would comprehend "in the
society so many separate descriptions of citizens as will
render an unjust combination of a majority of the whole very
improbable, if not impractical . "1^
For Madison, the Constitution and the Bill of Rights were
insurance against the tendency to override personal and
political liberty. That is to say, the safeguards of civil
liberty embodied in the Bill of Rights and the Constitution
essentially speak to the long-recognized problems of un-
checked governmental power and the rule of unchecked majori-
ties .
-18-
INTRODUCTION
Coininentators on the protection of civil liberties are unani-
mous on the point of the recent enormous increases in the
size, interests and functions of government on all levels.
That, coupled with the, democratically speaking, dangerous
notion that the government is the major provider of goods
and services, makes the traditional jealous regard for
individual rights in the face of big government more crucial.
Another commentator warns of the "facile assumption that our
forefathers were faultless in their formulations;" coupling
this with the notions that the states were at one time the
primary guarantors of civil liberties and that the states
currently have a function as the "little laboratory" for new
rights, the challenges of state activity in this area become
clear. 19
Certainly, the Constitutional Convention provides the com-
prehensive opportunity for dealing with these challenges.
-19-
-20-
CHAPTER I
NOTES
1. Leonard W. Levy, "The Right Against Self-incrimination:
History and Judicial History," Political Science
Quarterly 84 (1969) : 15.
2. John W. Smurr, "A Critical Study of the Montana
Constitutional Convention of 1889," (Unpublished
Master's thesis, University of Montana, 1951), p. 66.
3. One notable exception to the lack of scholarship is
Emilie Loring's study of procedural rights of the crim-
inal defendant in Montana. The study is cited in the
section on procedural safeguards.
4. Lester Mazor, "Notes on a Bill of Rights," Utah Law
Review 40 (1966): 327. Cited hereafter as Mazor, "Notes."
5. Montana, Legislative Council, The Montana Constitution,
Report No. 25 (Helena, 1971); Montana, Constitutional
Convention 1971-197 2, Constitutional Convention
Commission, Constitutional Provisions Proposed by
Constitution Revision Commission Subcommittees, Montana
Constitutional Convention Occasional Paper No. 7 (Helena,
1971); Lucile Speer, We, the People... (Bozeman:
Cooperative Extension Service, 1971) ; Robert Rankin,
Bill of Rights (New York: National Municipal League,
1960) ; Hawaii , Legislative Reference Bureau, Article I:
Bill of Rights, Hawaii Constitutional Convention Studies
(Honolulu : University of Hawaii, 1968).
6. Irving Brant, The Bill of Rights: Its Origin and Meaning
(New York: Bobbs-Merrill Co., Inc., 1965), p. 13.
7. Ibid.
8. Robert M. Morgenthau in Sidney H. Asch, Civil Rights and
Responsibilities Under the Constitution (New York: Arco,
1968) , p. 5.
9. The political philosophers include Robert Pranger, Joseph
Tussman, Sheldon Wolin and Hannah Arendt. They stand at
the head of a breaking consensus in the discipline of
political science on these matters.
10. Bernard Bailyn, Ideological Origins of the American
Revolution (Cambridge: Harvard University Press, 1967),
p. 1.
11. See, for example, Hannah Arendt, On Revolution (New York:
Viking Press, 1963), p. 148, where she explicitly
stresses that the founders and the men of the Revolution
-21-
did not need to "dispel their ignorance" on the
"safeguards of civil liberties — a subject on which
they certainly knew much more than any previous
republic. ..." Cited hereafter as Arendt, On
Revolution.
12. Mazor, "Notes," note 161, p. 350. For the pervasive
critique, see Staughton Lynd , The Intellectual Origins
of American Radicalism (New York: Random House, 1968) ,
13. Jerome Shestack, "Foreword", Human Rights , American Bar
Association 1 (August, 1970) : viii.
14. Robert Rankin, Bill of Rights (New York: National
Municipal League^ 1960) , p. 7. Cited hereafter as
Rankin, Bill of Rights.
15. For example, see Arendt, On Revolution, p. 220, where
she states: "Finally, it is perfectly true and a sad
fact indeed, that most so-called revolutions, far from
achieving the constitutio libertatis [foundation of
freedom] , have not even been able to produce constitu-
tional guarantees of civil rights and liberties, the
blessings of 'limited government", and there is no
question that in our dealings with other nations and
their governments we shall have to keep in mind that the
distance between tyranny and constitutional, limited
government is as great as, perhaps greater than, the
distance between limited government and freedom. But
these considerations, however great their practical
relevance, should be no reason for us to mistake civil
rights for political freedom, or to equate these pre-
liminaries of civilized government with the very sub-
stance of a free republic. For political freedom,
generally speaking, means the right 'to be a participator
in government', or it means nothing."
16. Public Administration Service, Civil Rights and Liberties,
Staff paper prepared for the Alaska Constitutional
Convention (Chicago, 1955), p. 1.
17. James Madison, Federalist Papers, No. 51 (New York:
New American Library, 1961) , p. 324.
18. See, for example, Rankin, Bill of Rights, p. 20.
19. Mazor, "Notes," p. 350.
CHAPTER II
HISTORICAL BACKDROP
INTRODUCTION
The story of how Americans came to rely primarily on written
and legally enforceable guarantees of civil liberties provides
an interesting base for the study of the American political
climate. An in-depth discussion of the historical initiation
and use of declarations of rights and principles is beyond the
scope of this report. What will be attempted is a brief intro-
duction to the seriousness and historical depth of written,
essentially negative protections against certain governmental
encroachments as they were incorporated into the state and,
later, the federal government's fundamental laws.-*- Special
emphasis is placed on the colonial period and the attitudes
leading to the drafting of the federal Bill of Rights. The
richness of the political character of these guarantees is
perhaps best indicated during that period. Too, from that
period can be derived some insight into the contemporary con-
cern with the role of a state bill of rights.
THE HERITAGE
According to Leila Roberta Custard, "a rich, significant mean-
ing lies at the heart of the term 'bill of rights' as it is
used in our country today. "^ The history of bills of rights
and the concept of liberty they embellish is a record of a
depth of political conflict, contingency and struggle that no
imagination can grasp in its entirety. Behind every phrase
in the various bills of rights lies much more than a certain
tonnage of case law; "each clause is the crystallization of ex-
perience gained at the price of human oppression and suffer-
ing. " -^
Irving Brant speaks to this point when he says in writing the
history of civil liberties it is crucial
to pursue the struggle to free men's minds . . . keeping
in mind that, on both sides of the Atlantic, it is far
more a story of cruelty and oppression--of denials of
liberty and perversions of the institutions of justice--
than it is of willing recognition of the rights of man.''
-23-
HISTORICAL BACKDROP
The concepts behind the written guarantees of civil liberty —
liberty and rule by the authority of nature and reason--have
deep roots. For example, it was probably in the fifth century
B. C. that a term corresponding to the present term for
"statutory law" was changed from its older connotation as "an
enactment imposed from above" — or "something imposed by an
external agency, conceived as standing apart and on a higher
plane than the ordinary, upon those for whom it constitutes an
obligation"--to a different term with a distinct meaning. °
The two terms, oesmos and nomos, used in Athens and throughout
the Greek world, approached the notion of a statute from
opposite directions. The term nomos , used exclusively after
511-10 B.C. , carried with it a sense of obligation as did
oesmos; but nomos "is motivated less by the authority of the
agent who imposed it than by the fact that it is regarded and
accepted as valid by those who live under it."^ That is to say,
nomos regards law "as the ratification of what is generally
regarded as valid and binding," whereas oesmos carries with it
a twinge of arbitrariness, of authoritarian imposition."
The direction from which nomos approaches the notion of statute
lends itself easily to the idea of popular sovereignty — people
who are obligated to obey are also the ultimate judges of the
wisdom of enactments. As noted by one commentator:
[T]he "obligatoriness" of the laws does not consist in
their undoubted capacity to compel observance, but
in the possibility, which does not belong to all laws,
of being accepted and obeyed by the "good citizen".^
The ancient notion of "natural law" also informs the concept of
liberty and the central questions of political obligation. In
classical antiquity natural law often was compared to and con-
trasted with the positive law of particular polities . ■'■^ The
natural law--really a kind of philosophy of law--was not con-
ceived as part of the system of law itself; rather it was a
kind of "meta-law," a whole conception of what was appropriate
in legal situations. It was, then, an understanding with
which actual legal systems were comprehended, assessed and
criticized. 1^
Hippias and the Sophists in the late fifth century B.C. urged
a conception of rights by nature which they distinguished from
rights by law; they also stressed the unchangeableness of the
natural right as against the variability and derivative nature
of the legal right. Where the two conflicted, the natural
law superseded. 12 Aristotle echoed Demosthenes (c.350 B.C.)
when he advised advocates that they should "appeal to the law
-24-
HISTORICAL BACKDROP
of nature" when they had "no case according to the law of the
land."!^ Demosthenes had said that "every law is a discovery,
a gift of God, a precept of wise men."l^ Aristotle also
quoted Sophocles who, in the well-known tragedy, Antigone ,
said "an unjust law is not a law."
These ideas reflected themselves across time, having a pro-
found influence on the Founding Fathers who consulted the
classics for their ideas on the propriety of certain political
ideas. For example, Demosthenes' idea that law was a discovery
is reflected in the pervasive colonial belief that a written
constitution was not the source of certain inalienable rights
but merely served to better protect them.
According to Edward Corwin, the American tradition of civil
and constitutional liberty has its source in Cicero's concep-
tion of a cosmic reason which directs the movements of the
heavenly bodies and the conduct of good men alike. In Con-
cerning the Commonwealth, Cicero wrote of the natural law as
"right reason, harmonious with nature, diffused among all,"
a law which "may not be derogated or abrogated, " a law which
"requires no interpreter, since all men are capable of under-
standing it, a law which is the same for Rome as for Athens,
the same at one time as at another" (emphasis added) . l^
That passage bears a striking resemblance to one in the Declar-
ation of Independence which reads :
We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain inalienable rights; and that
among these are Life, Liberty, and the pursuit of
Happiness [emphasis added] .
Separated by nearly twenty centuries, two major statements of
political theory enunciate the same principle: a universal
law self-evident to the intuitive common sense of all men.
Such is the depth of the heritage implicit in the timeless
principles of bills of rights.
EARLY ENGLISH DOCUMENTS
The earliest of the famous documents of civil liberty is the
Magna Carta (Great Charter) of 1215. Certain protections,
notably due process of law, were extracted from King John by
a group of Barons in hostile assembly at Runnymede . Although
the Magna Carta was, in all probability, "something less than
a passionate blow for liberty, "^^ the document and its
-25-
HISTORICAL BACKDROP
interpretations across time provided a potent springboard
for claimants of extended liberties for centuries after its
enactment. The aura surrounding the Magna Carta, that it
subordinated the King to the rule of law, although not com-
pletely accurate, sheds some light on the future importance of
that thirteenth century document. The rule of law — especially,
in this case, the notions that the rulers were to be subject
to law--can be found in antiquity. Plato, perhaps best known
for attempting to make the world safe for philosophers, wrote
in the Statesman and in the Laws of a second-best polity based
on the rule of law.^^
This principle persisted up until the present, its most pop-
ular formulation being borrowed from the seventeenth century
English political theorist, James Harrington, and finding its
v/ay into the Massachusetts Constitution of 1780: "a Govern-
ment of Laws and not of Men." The fact that this principle
and others--such as "no taxation without representation" — were
credited by men of the American Revolution to the Magna Carta
shows that a political document or event (as is also the case
with good literature of all types) has a "life" of its own
beyond the intent or circumstance of its leading personalities.
That certainly is the case with the Magna Carta.
An almost forgotten document in the development of the liber-
ties of Englishmen is the Confirmatio Cartarum (Confirmation
of the Charter) of 1297, in which the principles of the Magna
Carta were ordered "kept without breach." This statute also
declared that a judgment contrary to the Magna Carta's pre-
cepts would be "holden for nought." In doing so, it set the
frame for the notion that a law higher than that of legislative
enactment could be written; in fact, it can be said that it is
the forerunner of the principle of a written constitution,
whose purpose it is to set down a fundamental base in accord-
ance with which statutes are enacted.
The law which grew up around these and other documents of
English constitutional history informed the colonial under-
standing of civil liberties. One important distinction must
be noted, however: where the English constitution remained
largely unwritten, the thrust of the American colonial effort
was to make constitutional principles explicit in written form.
THE COLONIAL DOCUMENTS
In 1606, a Stuart king initiated the "charter period" of civil
liberties documents by granting a short-lived charter to the
-26-
HISTORICAL BACKDROP
first settlers of Virginia. This was the first successful
implantation of the soon-to-be-crucial principle that
the colonists . . . enjoy all Liberties, Franchises,
and Immunities ... to all Intents and Purposes as if
they had been abiding and born, within this our realm
of England, or any other of our said Dominions . ■'■°
In 1639 the first colonial list of rights which could be called
a "bill of rights" was passed by the Maryland General Assembly.
A short statement, it also guaranteed to all the Christian
inhabitants of the colony (slaves excepted) all the "rights,
liberties, immunities, priviledges and free customs ... as
any naturall born subject of England hath or ought to have or
enjoy." The common law of England was specifically mentioned
as a part of this inheritance. In addition, the Magna Carta
guarantee of due process of law was specified.-*-^
In general, in the early colonies, the primary concern was for
the welfare of the community; accordingly, the protection of
personal liberties came second. Nonetheless, during this
period in which necessity was harshly present, a student of law
and practicing barrister in the English common law courts
drafted a detailed list of rights which became the Massachusetts
Body of Liberties of 1641. The list included due process of
law, equal protection of the laws and the right of petition;
it forbade monopolies and provided that those who adhered to
the Congregational form of worship could exercise freely their
religion. Other rights included the freedom from barbarous or
cruel punishments; a requirement that where the death penalty
was to be inflicted the testimony of two witnesses was re-
quired; the right of counsel, provided the client did not pay
counsel; annual elections, and the right of a woman to be free
from physical abuse at the hands of her husband unless she
initiated the assault. Another interesting provision stipu-
lated that no person could be conscripted into the military for
service outside the colony. ^"^ Later additions to this list of
liberties included the enumeration of state officials to be
elected each year: governor, deputy governor, assistants and
their representatives or deputies. ^^
One of the rights not expanded in the Puritan colony was the
narrow free exercise of religion clause. The Puritans were
not ready to grant to persons who were heretics — by Puritan
def inition--the rights to the free exercise of religion. In
fact, one of the earliest disputes in Massachusetts involved
the banishment of Anne Hutchinson and Roger Williams from the
colony for their Anabaptist tendencies. Williams eventually
founded the colony of Rhode Island in 1663 and his insistence
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HISTORICAL BACKDROP
on religious toleration resulted in the colonial charter
specifying the right to the free exercise of religion. The
limited extent to which religious toleration was applied even
in this early example can be seen in the fact that Rhode
Island carried on its statute books, from 1719 to 1783, a pro-
vision excluding Roman Catholics from public office (although
there is a good chance the provision was not enforced). ^2
Religious toleration was also an issue in Carolina where in
1663 the colonial proprietors granted limited religious toler-
ation. Dissenters were required to swear to a loyalty oath.
And, in any case where the peace of the community might be
disturbed as a result of nonconformists practicing their reli-
gion, such practice was prohibited.
In 1676, the laws of West New Jersey were drawn up "to be the
foundation of the government . . . not to be altered by the
Legislative authority. ..." These laws were, by this pro-
vision, made more binding than ordinary legislative enactments.
This amounts to a further precedent for the written constitu-
tion, a body of law which is more fundamental than, and con-
trolling upon, statute or law. Under these laws a person who
worshipped God was free in matters of religious worship. No
resident could be deprived of life, liberty or property without
a jury trial; the jury was to consist of twelve good men of
the accused person's neighborhood. The accused could challenge
the seating of up to thirty-five juries with no reason neces-
sary; with a valid reason, there was no limit to the number of
challenges he could have. Other procedural guarantees which
were incorporated included mandatory jury trials and the right
of an accused to represent himself. To assure that these
rights were observed, proprietors instructed that they "be re-
corded in a fair table ... in every common hall of justice
within [the] province. "^3
Two further colonial charters with restrictive statements of
the right of religious liberty were issued in the 1680s. The
New Hampshire Charter contained no personal rights provisions
beyond guaranteeing the liberty of religious conscience to
Protestants. The Pennsylvania Frame of Government, granted by
William Penn, contained fairly extensive guarantees of per-
sonal rights. Free men were authorized to elect the General
Assembly, to plead their own cases and to have "justice speed-
ily administered" by a twelve-man jury. Religious toleration
was accorded only to those "who confess and acknowledge the
one Almighty and eternal God, to be the Creator, Upholder and
Ruler of the World." Such a provision was a notable break with
the prevailing narrow conception of religious toleration ordi-
narily granted only to certain sects . •^^
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HISTORICAL BACKDROP
A change in the method of initiating civil liberties guaran-
tees in the colonies occurred in 1683 when the General Assembly
of New York passed a charter of liberties and privileges which
guaranteed a number of personal rights. A provision reminis-
cent of Magna Carta guaranteed due process of law. Jury trials
were assured to the accused. Bail was permitted except in
cases of treason or felony. Quartering troops in private
homes was prohibited in peacetime and martial law was prohib-
ited. As long as they did not disturb the civil peace.
Christians were assured of the freedom of religion. A small
crisis developed when the new king refused to approve the
legislation. The New York Legislative Council re-enacted
essentially the same guarantees in 1691. Although the charter
lacked the permanence of the colonial charters, it then became
law. During the intervening eight years, the Glorious Revolu-
tion of 16 8 8 had occurred in England. Parliament was on the
rise in terms of power and the royal prerogative was dimin-
ished. 25
At the opening of the eighteenth century, the Pennsylvania
Charter of Privileges was adopted. Until the American Revolu-
tion, this declaration remained the most impressive list of
rights of the colonial period. Article I of the charter de-
clared that true happiness would be unknown to mankind unless
there was no abridgment of the freedom of conscience in matters
of religion and worship. A separate provision declared that
any future attempts to alter the section on the liberty of
religious conscience would be illegal. Such a provision would
later be employed by Thomas Jefferson in an effort to check the
power of future legislators to repeal laws which protected
basic liberties. A number of present-day state constitutions
still have this type of principle in the declaration of rights,
excepting the rights out of the powers of government in an
effort to block future abridgment. Other provisions in this
charter guaranteed due process of law and exempted the estates
of persons committing suicide from seizure by the state. ^o
THE REVOLUTIONARY PERIOD
During the following period, from 1700 to 1760, the axiom that
political theory is seldom born in tranquil times was the
rule. It was not until the colonists found themselves in a
political crisis with England that attention was again focused
on the rights of men. Subsequent to parliamentary enactment
of the Revenue Act of 176 4 the colonists increasingly com-
plained that they were being denied the rights of Englishmen
by being taxed while having no representation. What one
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HISTORICAL BACKDROP
cominentator has referred to as the "distinctive political
culture of the revolutionary period" was born, 27 Along with
it was begun the second surge of written declarations of
rights.
Meeting in response to the passage of a second revenue-extrac-
tion measure — the Stamp Act — the Stamp Act Congress of 1765
issued a set of grievances in which it asserted several liber-
ties including the right of petition, trial by jury, and the
"full and free enjoyment of their liberties . "^^ A town meeting
in Boston in 1772 also alluded to some personal rights. Com-
plaints were lodged against the writs of assistance with which
royal officers searched for contraband, against quartering
troops and against violations of the right of trial by jury.
The deep dissatisfaction of the colonies was not destined to
continue as isolated pockets of resistance. On the eve of
the meeting of the 1st Continental Congress, Samuel Adams urged
a national bill of rights as a step toward negotiation with
Great Britain. The Congress passed a Declaration of Rights on
October 14, 1774. The avowed validity of the resolution was
based on "the immutable laws of nature, the principles of the
English Constitution, and the several charters and compacts"
of the colonies. 2^
In near unanimity the Congress later used the declaration of
rights as an instrument of propaganda in a letter to prospec-
tive allies in Quebec. This letter declared such principles
as the rights of Englishmen, the rights of assembly and
petition, the right to trial by one's peers, the right to
participate in the legislative branch, habeas corpus and the
freedom of the press. In this early acknowledgment of the
freedom of the press , the Congress wrote that the importance
of a free press consists
besides the advancement of truth, science, morality,
and acts in general, in its diffusion of liberal
sentiments on the administration of Government, its
ready communication of thoughts between subjects, and
its consequential promotion of union among them,
whereby oppressive officers are shamed or intimidated,
into more honourable and just modes of conducting
affairs. 30
Although these resolutions did not recruit Quebec to the
colonial cause, the strong statements of fundamental rights
foretold some of the future content of similar declarations.
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HISTORICAL BACKDROP
Six months later, a band of townspeople who had assembled at
dawn in the town square of Lexington to resist the British
were overrun. While the Continental Congress maintained an
army, emitted bills of credit and generally preserved order,
the colonies began to act increasingly in an independent way
while debating the prospect of severing ties with Great Britain.
Reflecting on the opposition to an effort to declare independ-
ence from Britain, John Adams wrote that "all great changes
are irksome to the human mind, especially those which are
attended with great dangers and uncertain effects. "-^^ His
statement was suggestive of the later statement in the Declar-
ation of Independence:
[P]rudence, indeed, will dictate that Governments long
established should not be changed for light and
transient causes; and accordingly, all experience hath
shown that mankind are more disposed to suffer, while
evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed.
Three weeks later, the Virginia state convention, meeting in
Williamsburg, drafted and passed a resolution asking Congress
to declare the colonies free and independent states. At the
same time, the convention passed a resolution calling for a
committee to draft for Virginia a declaration of rights and
a plan of government. Perhaps no single document has had a
greater effect on the shape of American bills of rights than
what became the Virginia Declaration of Rights. -^^ The individ-
ual principally responsible for the finished product is a man
who is sometimes overlooked as an inspiration for civil liber-
ties in early American history. George Mason had been active
as a partisan of colonial rights for a number of years. He
possessed uncommon enlightenment; for example, he had urged
for a number of years the abolition of the slave trade as
"wicked, cruel, and unnatural." His importance in the effort
to secure a federal bill of rights is discussed below.
Shortly after the Virginia convention adopted its bill of
rights and constitution, the Continental Congress issued what
"was almost immediately accepted as a national bill of
rights. "^-^ The Declaration of Independence, principally draft-
ed by Thomas Jefferson, and containing no new bill of rights
concepts (with the possible exception of civilian control of
the military) , ended the claims that the colonists had rights
by virtue of their being Englishmen. Although English con-
stitutional history still provided valuable historical materi-
al for the development of certain rights, the colonists hence-
forth expressed their rights as the natural and inherent
rights of all men.
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HISTORICAL BACKDROP
In the intervening years between the 1776 Declaration and
1784, every section of the republic followed the Virginia
example and adopted a declaration of rights. Most of the
political leaders did not want citizens' personal rights to
be dependent upon the common law alone. Without even bother-
ing to examine the common law to discover whether certain
protections could be found there, the colonies wrote what
they felt to be the essential safeguards into their fundamen-
tal laws. Thus the process of distilling natural rights into
civil rights and according civil rights constitutional sanc-
tion was initiated.
Copies of the Virginia Declaration of Rights were circulated
throughout the colonies and served as a model for at least
seven colonies which, in some cases, adopted its articles
verbatim.
Although there is a paucity of historical evidence, the great-
est concern with the principle of popular rights was probably
displayed in the Pennsylvania convention. It was a scant two
weeks after the Declaration of Independence was adopted that
this convention met; in fact, when an urgent call to the con-
vention from Congress for militiamen demanded some response,
so many of the delegates were working on the declaration of
rights that action had to be delayed until a quorum could be
summoned. 3'*
In several respects the Pennsylvania declaration went beyond
the one previously adopted in Virginia. Both were on the same
ground in guaranteeing a speedy and public trial, freedom from
general warrants, freedom of the press, the right to bear arms
and civilian control of the military. In addition, the
Pennsylvania declaration exempted from military service all
conscientious dissenters and granted the freedom to travel
from the state and form a new state. The Virginia declaration
did not grant the former and it discouraged the latter.
When the New Hampshire bill of rights and constitution, habit-
ually rejected between 1778 and 1784, finally was adopted, the
state with the first independent temporary government closed
the revolutionary period of bill of rights drafting. An
interesting provision in this document--one which is sugges-
tive of Article III, Section 24 of the Montana Constitution —
provided that penalties should be "proportioned to the nature
of the offence .... The true design of all punishment
being to reform, not to exterminate, mankind. "-^^
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HISTORICAL BACKDROP
THE EARLY "FEDERAL-STATE" RELATIONSHIP
Within six years of the adoption of the Declaration of Inde-
pendence, the essential shape of guarantees of civil liberties
was clear. The states, operating as fully sovereign entities,
all had lists of rights which to the colonial mind harbored
the essence of personal liberty. There was little concern that
a national government--at that time still the Confederation--
would exercise any powers over the liberties of citizens. In
fact, the Continental Congress had dealt with an issue of this
sort when it was confronted with the problem of whether to
arrest deserters from the Continental army. Thomas Burke of
North Carolina sounded a warning that for the Congress to do so
would set a bad precedent:
[I]t might render ineffectual all the barriers provided
in the states for the security of the rights of
citizens. . . and the subject of every state was
entitled to the protection of that particular state. ^^
This reasoning, that a citizen's rights were a state concern
and not to be tampered with by the national Congress, was
accepted by the Congress and the public. Accordingly, there
was no demand for a federal bill of rights between 1777 and
1786. It was only as a result of the popular alarm created by
the concentration of power proposed in the 1787 U.S. Constitu-
tion that agitation for what became the federal Bill of Rights
was brought about. ^^
THE 1787 FEDERAL CONSTITUTIONAL CONVENTION
Although there was no consensus on the merits of calling a
convention to revise the Articles of Confederation under which
the united colonies operated for slightly more than twenty
years, there was a good deal of dissatisfaction over the exist-
ing form of government. One can understand the depth of such
dissatisfaction without going into the body of criticism
leveled at the Confederation. When George Washington was
asked to use his influence in such areas as western Massachu-
setts which, "throughout the entire Revolutionary era were
in a state of virtual rebellion from the governing author-
ities in the east,"-^^ he replied that "Influence is no
Government. . . . Let us have one by which our lives and liber-
ties and properties will be secured; or let us know the worst
at once . "^^
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HISTORICAL BACKDROP
In general, the criticism leveled against the government
under the Articles of Confederation was that it was no govern-
ment at all, only influence. Typically, the concern expressed
was that the government was unable to preserve order, protect
property, or adequately defend itself against foreign powers.
Significantly, in all the newspaper articles and volumes of
private correspondence calling for changes in government, there
appears no complaint about the infringement of personal rights.
Therefore the delegates who came to Philadelphia to write the
blueprint for a stronger central government were not at the
outset concerned with specific, written guarantees of civil
liberties. Of the two who could be especially counted upon to
champion personal liberties, one, Thomas Jefferson, was out
of the country. ^0 And it was not until the convention was near-
ly over that the other, George Mason, rose on the floor of the
convention and complained of lack of a bill of rights. Accord-
ing to the Madison notes. Mason said such a list of rights
"would give great quiet to the people; and with the aid of the
State declarations, a bill might be prepared in a few hours. "41
Delegate Gerry then made a motion to appoint a committee to
prepare such a declaration. Mason seconded the motion. Accord-
ing to notes kept by James Madison, delegate Sherman then rose
and announced that he too "was for securing the rights of the
people where requisite." He believed, however, that since "the
State Declaration of Rights are not repealed by this Consti-
tution" these state protections of civil liberties were suf-
ficient. '^^ Mason responded that under the supremacy clause
"the Laws of the U.S. are to be paramount to State Bill of
Rights." Mason's fears that the federal government would
assume powers affecting the civil liberties of citizens notwith-
standing, ten states voted "no" on the question of appointing
a committee to draft a list of protections.'^-^
Thereafter, Mason was to write — on the blank pages of a con-
vention draft proposal — his objections to the Constitution as
it was taking shape. His principal objection — an objection
which was to haunt the entire ratification process — was that
there is no Declaration of Rights, and the laws of
the general government being paramount to the laws
and constitution of the several States, the Declara-
tion of Rights in the separate States are no security.
Nor are the people secured even in the enjoyment of
the benefit of the common law. .
44
Mason and Gerry thereafter attempted a series of piecemeal
amendments, all of which were unsuccessful. On the final day
of the Convention, Mason voiced his fear that the federal
government being created could become oppressive. Mason was
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HISTORICAL BACKDROP
joined by Elbridge Gerry and Edmund Randolph in refusing to
sign the final document. Gerry said he could get over his
serious objections to the powers granted Congress; what he said
he could not ignore was that the rights of citizens were
rendered insecure by a judiciary without a jury--in his eyes,
a Star Chamber. However, as the Convention adjourned and the
delegates headed home, the primary concern was to secure rati-
fication of the new Constitution.^^
George Washington lent his support to the ratification cause
with a letter from Washington. From Paris, however, came a
different response. Thomas Jefferson, who had viewed the
operation from a distance, was concerned about the new structure
of government. After carefully reviewing the proposed Consti-
tution, he wrote to James Madison that what he did not like
about the document was "first the omission of a bill of rights
providing clearly & without the aid of sophisms" the list of
rights accepted as fundamental in America. Jefferson took
issue with the Federalist persuasion that viewed rights as be-
yong the scope of the newly created government; such a notion
left him uneasy. There was no assurance in the proposed Con-
stitution that the states retained powers not delegated to the
federal government. As an afterthought Jefferson scribbled a
now famous passage in the margin of the letter:
Let me add that a bill of rights is what the people
are entitled to against every government on earth,
general or particular, & what no just should refuse,
or rest on inference.
Jefferson continued to write on the need for a bill of rights,
urging that no more than nine states ratify the Constitution
until a bill of rights could be appended. On this issue the
Federalists and anti-Federalists clashed in every state
ratification convention. Delaware ratified quickly and unan-
imously. An effort to amend the document with fifteen prop-
ositions was turned down in Pennsylvania, 46-23. An identical
vote ratified the document. '^^ Twenty-one of the twenty-three
minority voters then set up their own "rump convention" and
announced that a "bill of rights was indispensable to ascertain
and establish 'those unalienable and personal' rights of men.'*^
New Jersey and Georgia ratified unanimously and were followed
by a three-to-one vote in Connecticut. By early January of
1788, scarcely four months after the Convention had adjourned,
five states had ratified. Then the complexion of the ratifi-
cation process changed. The Massachusetts convention stood
on the verge of rejecting the document by a narrow margin.
Desperate Federalists at that convention were found offering
amendments to alleviate the criticism that the document had
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HISTORICAL BACKDROP
no bill of rights. At this point in the ratification process,
a twist of fate began to affect events which followed. The
anti-Federalists, at the peak of their strength, found them-
selves confronted with an uncooperative postal service. News
of an event which occurred in Philadelphia on December 18 —
the minority organization of a "rump convention" in Pennsyl-
vania— had not reached Boston when the Massachusetts convention
adjourned on February 9. Difficult though it is to speculate
seriously on these matters, it seems certain that such news
would have added weight to the anti-Federalist effort to stop
the Constitution at the Massachusetts ratification convention. ^9
At the end of all the arguments, the Federalists carried the
ratification vote by the narrow margin 187-168. Such a vote
could only be secured by the convention's agreeing to send along
with the ratified document recommended amendments. Among the
nine articles adopted were: a reservation to the states of
powers not delegated to the federal government, an injunction
against Congressional regulation of elections, a prohibition
against Congressional levying of direct taxes or creating
monopolies and the necessity of the grand jury. No provision
was recommended on free speech, press or conscience.
After the New Hampshire convention temporarily adjourned
(giving the Federalists time to regroup) , the Maryland conven-
tion convened and quickly ratified the Constitution. In the
South Carolina legislature, a one-vote majority approved the
call for a convention. This convention also ratified by a
healthy margin; in the process it also adopted several recom-
mendatory amendments. With eight states having ratified, the
whole scheme was not yet completed. It was not until the
convention of New Hampshire ratified by a ten vote majority
that the new document was assured a trial. In addition to the
Massachusetts personal liberties amendments, the New Hampshire
convention recommended a three-fourths majority of Congress
for the maintenance of a standing army, prohibitions on quar-
tering of troops, the right of citizens to bear arms and an
assurance that Congress would not abridge the free exercise
of religious conscience. ^^
By this stage of the ratification procedure, the Federalist
opposition to a bill of rights had collapsed, if only in ex-
asperation. In general, the anti-Federalist misgivings as
to the powers of the proposed federal government were sup-
planted by what was, in reality, only one of their objections
to the new scheme of government. The upshot of it all was
that of the four remaining states to ratify the Constitution--
Virginia, New York, North Carolina and Flhode Island — two
adopted proposed amendments; one in refusing to ratify the
document declared itself to be in a state of friendly suspension
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HISTORICAL BACKDROP
with the union, and the other waited until early 1790 to even
call a convention. During this time all but the most hardened
Federalists had accepted the idea of a federal bill of rights.
It was the task of the 1st Congress to draft such a list of
guarantees . ^^
THE FEDERAL BILL OF RIGHTS
A few months before the 1st U. S. Congress was to meet, James
Madison wrote to Jefferson that he had "always been in favor
of a bill of rights" even though many good men had felt a dec-
laration of rights would be out of place in the Constitution.
Madison's support was conditioned on the assumption that such
a bill of rights be framed so "as not to imply powers not
meant to be included in the enumeration" (emphasis added) . ^
Thus, Madison's chief fear was that government might infer from
a list of rights powers not delegated to it. Although he did
not share the extreme Federalist belief that the newly created
government had no powers in the civil liberties area, he was
afraid that some of the most essential rights could not be
written down "in the requisite latitude."
In the same letter Madison offered two rationales for adopting
a bill of rights. First, he hoped it might create a national
tradition to "counteract the impulses of interest and passion."
On this count he had no misgivings. He was well aware that
when it was most needed a bill of rights was most often trans-
gressed. He noted that legislative majorities in every state
had violated what he called "parchment barriers" whenever it
served their interest to do so. The chief danger to individual
rights, as he saw it, was precisely when the government oper-
ated as "the mere instrument of a major number of constituents . "^^
Madison's second rationale for a bill of rights was that it
could provide "good ground for an appeal to the sense of the
community." In other words, it would provide the public with
a written dociament from which to appeal against undue govern-
mental actions. ^^
In drafting the federal bill of rights, Madison preferred to
borrow the general principles from the states' bills of rights
rather than attempt to catalog a long list of protected activ-
ities. Believing that "the best security against these evils
is to remove the pretext for them," he never intended to
compile any complete list for attachment to the Constitution.
That is to say, the principal draftsman of what became the
federal Bill of Rights never believed he was writing a complete
list of safeguards . 55
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HISTORICAL BACKDROP
With the Virginia legislature still pushing for a new conven-
tion to draft amendments to the Constitution, Madison emerged
as a kind of rights champion and prodded Congress to hear his
proposed bill of rights. Although the anti-Federalists
had some misgivings when faced with the prospect of a leading
Federalist drafting the federal civil liberties protections,
Madison borrowed heavily from the Virginia Declaration of
Rights — which was drafted by the anti-Federalist George Mason.
After he had read his proposals he delivered a lengthy speech
favoring a bill of rights in which he used many of the arguments
Jefferson had sent him through the mails.
After numerous delays and much publicity, seventeen amendments
were sent from the House to the Senate. During the Senate
debate — closed to the public--on the proposals, the amendment
which Madison prized most was dropped. This was a provision
which prohibited the states from infringing their citizens' per-
sonal rights. However, after further wrangling, a conference
committee sent twelve proposals to the states for ratification.
This congressional approval of civil liberties amendments
brought about North Carolina's ratification of the Constitu-
tion
56
On December 15, 1791, the Virginia legislature — the first to
provide legal safeguards for personal liberties — became the
eleventh state to ratify the proposed amendments. ^^ Three-
fourths of the states had ratified the amendments and they
took effect. Thomas Jefferson, as secretary of state,
officially announced the ratification of the Bill of Rights.
Doing so must have offered him some relief, for he had earlier
argued that
the spirit of the times may alter, will alter . . . [and
thus] the time for fixing every essential right on a
legal basis is while our rulers are honest, and ourselves
united. From the conclusion of this war [the Revolution]
we shall be going down hill.^^
To be sure, the political vitality of the country would in all
probability never approach the same levels of the revolution-
ary period. The long history of pitched battles over civil
liberties was begun. Perhaps no single attribute of American
government has provided as much controversy-- from the Alien
and Sedition Act of 1798 to the Chicago 8 trial of 1970 — as
these guarantees of civil liberties. Demanded and -written by
the rebels of that day they are still explored and invoked by
revels of the present. This is not too surprising; as one
commentator has written, "the job is never done."59
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HISTORICAL BACKDROP
Oscar Handlin, speaking specifically of the colonial period
and the enactment of the federal Bill of Rights has said that
"the designation [Bill of Rights] was inappropriate." He goes
on to say that assumptions that the Founding Fathers had arrived
at a clear understanding of what their civil liberties were
and the assumption that the Bill of Rights was a "reasoned,
calculated eniameration of the freedoms that Americans valued"
are both wrong:
The content of these rights was not defined from the
start. Rather, an understanding of what they involved
developed only slowly and piecemeal as the Americans
gained experience with self-government."^
During one part of the process of defining these guarantees —
judicial interpretation--the federal government has attained
a position of ascendancy. The following chapter discusses the
possibility that, this occurrence notwithstanding, the states
have a vital role in the area of the protection of civil liber-
ties .
THE MONTANA DECLARATION OF RIGHTS
A brief note on the history of Montana's declaration of rights
is in order. In general, the wording of the present declara-
tion of rights appears to have been derived almost verbatim
from Article II of the Colorado Constitution. 61 This particu-
lar line of derivation of fundamental rights is not especially
significant, however; far more important to the shape of the
guarantees adopted in Montana was the sheer weight of tradition
attached to the concept of a declaration of rights. Having
said this, it should be noted that three instances in which
the 1889 Montana Constitutional Convention departed from the
Colorado examples do appear to be significant. These three
departures are discussed briefly in the essays on Rights of
Incarcerated (Chapter VI) , Eminent Domain (Chapter VIII) and
Equal Protection of the Laws and Freedom from Discrimination
(Chapter X) .
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CHAPTER II
NOTES
1. This report does not deal with the notion of positive
liberty. Some mention of that concept will be made in a
subsequent report on the First Amendment Freedoms. That
report will discuss the distinctions between "negative
protection" and "positive liberty" and, in somewhat more
detail, the distinction between the type of freedom
incorporated in the First Amendment and the liberty of,
say, the Fifth Amendment.
2. Leila Roberta Custard, Bills of Rights in American History
(Los Angeles: University of Southern California Press,
1942), p. 9. Cited hereafter as Custard, Bills of Rights.
3. Ibid.
4. Irving Brant, The Bill of Rights: Its Origin and Meaning
(New York: New American Library, 1965) , p. 89~!
5. See e.g.: Aristotle: Politics (New York: Oxford University
Press, 1962) , wherein Aristotle stressed: "Law may thus
be defined as 'Reason free from all passion.'" 1287a Sec.
5, p. 146.
6. Martin Ostwald, Nomos and the Beginnings of the Athenian
Democrary (Oxford: Clarendon Press, 1969) p. viii, 55.
7. Ibid. , p. 55.
8. Ibid. , p. viii .
9. Alexander Passerin d'Entreves, The Notion of the State
(Oxford: Clarendon Press, 1967), p. 228.
10. A. P. d'Entreves, Natural Law (London: Oxford University
Press, 1951) , pp. 29-30.
11. J. R. Lucas, The Principles of Politics (Oxford: Claren-
don Press, 1966), p. 333.
12. Custard, Bills of Rights, p. 10, states that Protagoras
himself expounded a natural law theory. It is more likely
that it was Hippias who did so in the Platonic dialogue
Protagoras . Protagoras himself did not accept the
"Sovereignty of Naturrecht" (natural right) . See Ernest
Barker, Great Political Theory (New York: Barnes and
Noble, 1960) , p. 69 FT:
-41-
NOTES
13. Aristotle, Rhetoric, I, 15, 1375a, A 27f. Cited from
Edward S. Corwin, Liberty Against Government (Baton
Rouge: Louisiana State University Press, 1948), pp. 12-13.
Cited hereafter as Corwin, Liberty.
14. T. E. Holland, Elements of Jurisprudence (12th ed. 1916) ,
p. 44, note 1. Cited from Corwin, Liberty, p. 12.
15. Lactantius , Div. Inst. (Roberts and Donaldson tr., 1871) ,
vi , 8, 370. Cited from Corwin, Liberty, p. 14.
16. John Roche, Courts and Rights (New York: Random House,
1965) , p. 1.
17. To be sure, there is an important distinction to be made
between Plato's law and the contemporary statute. The
ethical preambles to the Platonic statutes were much longer
than the statutes themselves. This was Plato's effort
to keep statutes from becoming bare imperatives, each with
its own penal sanction. See A. E. Taylor, introduction
to The Laws (London: J. M. Dent and Sons Ltd. , 1960) ,
pp. xv-xvi .
18. First Charter of Virginia, April 10, 1606. Cited from
Richard L. Perry, Sources of Our Liberties (Rahway: Quinn
and Boden Co. Inc., 1959), p. 44. Cited hereafter as
Perry, Our Liberties .
19. Robert Rutland, The Birth of the Bill of Rights (Chapel
Hill: University of North Carolina Press, 1955), p. 14.
Cited hereafter as Rutland, Bill of Rights.
20. Perry, Our Liberties , p. 149.
21. Ibid.
22. Ibid. , pp. 16-18.
23. Ibid. , p. 20.
24. Ibid.
25. Ibid. , p. 21.
26. Ibid. , p. 23.
27. Gordon S. Wood, The Creation of the American Republic;
1776-1787 (Chapel Hill: University of North Carolina
Press, 1969), p. viii. Cited hereafter as Wood, The
American Republic.
-42-
NOTES
28. Rutland, Bill of Rights, p. 25.
29. Ibid. , p. 26.
30. Ford, ed. Journal of Continental Congress, I, 106.
Cited from Ibid. , p. 28.
31. John Adams to James Warren, April 22, 1776. Cited from
Ibid. , p. 30.
32. See Appendix C.
33. Custard, Bills of Rights, p. 12.
34. Rutland, Bill of Rights, pp. 45-6.
35. Ibid. , pp. 74-6. See Chapter VI on rights of the
incarcerated.
36. Burnett, ed. , Letters of Members of the Continental
Congress , II, 276. Cited from Ibid. , p. 79.
37. Rutland, Bill of Rights, p. 79.
38. Wood, The American Republic, p. 284.
39. George Washington to Henry Lee, October 31, 1786. Cited
from Rutland, Bill of Rights, p. 106.
40. Jefferson had taken a ministerial post in France. His
letters , to a convention whose secret sessions he could
not read about in the papers , contain his thoughts on a
proper constitutional framework. Rutland, Bill of Rights,
p. 107.
41. Max Farrand, ed. , The Records of the Federal Convention
of 1787 (New Haven: Yale University Press, 1911),
2:587-8. Cited hereafter as Farrand, Records . Rutland
has written that "of course, there was nothing unusual
in the fact that the personal rights of citizens were
not a topic of discussion in the preliminary debates.
Under the Confederation, these rights have been under
State protection. There was no reason to assume that this
protection had been lifted as long as the nature of the
new government was unknown." Rutland, Bill of Rights ,
p. 107.
42. Farrand, Records , 2:588.
43. Ibid.
-43-
NOTES
44. Ibid. , II, p. 637.
45. Rutland, Bill of Rights, pp. 117-18.
46. Thomas Jefferson to James Madison, December 20, 1787.
Cited from Ibid. , p. 129.
47. Ibid. , pp. 135, 141.
48. Ibid. , p. 141.
49. An indication of the ambiguous nature of the libertarian
commitment of the Massachusetts anti-Federalists can be
seen in the fact that they opposed the Constitution's ban
on religious tests for public office. Their opposition
to this ban was especially strong in the Massachusetts
ratification convention. Precisely at the time they were
arguing for a federal Bill of Rights they were opposing
one of the explicit liberties already in the proposed
Constitution.
50. Rutland, Bill of Rights, pp. 161-2.
51. Ibid. , pp. 162-89.
52. James Madison to Thomas Jefferson, October 17, 1688.
Cited from Ibid. , p. 192.
53. Such a statement is suggestive of a similar distinction
that was being made on the other side of the Atlantic.
Immanuel Kant, Konigsberg philosopher, understood well
the difference between social conventions (mores) on the
one hand and morality on the other hand. The implication
of Madison's utterance is that the danger to civil
liberties is not a product of the mere existence of
government; rather it is most likely that civil liber-
ties will be violated when a government acts claiming
that a majority — silent or vocal — adheres to its pol-
icies. This distinction--which is at least as old as
Socrates — has particular relevance in the area of First
Amendment Freedoms.
54. Rutland, Bill of Rights, pp. 192-4.
55. Madison's understanding of the form of the federal Bill
of Rights is crucial when, for example, one confronts
the argiament that the contemporary states should adopt
the federal bill in toto as their own. To do so would
amount to accepting what was, by its authors own admis-
sion, a whittled down version of the then-existing state
-44-
NOTES
bills of rights. (To be sure, the First Amendment is an
example of an addition that was made to the typical
state provisions.) This point is also discussed in
Chapter III.
56. Rutland, Bill of Rights, pp. 202-16.
57. Two amendments--one calling for a fixed ratio of House of
Representatives seats and one prohibiting Congressmen
from altering their salaries until an election had inter-
vened— were not ratified. Massachusetts, curiously
enough one of the first states to demand a federal bill
of rights, did not get around to ratifying the first ten
amendments until 19 41.
58. Thomas Jefferson, Notes on the State of Virginia (Chapel
Hill: University of North Carolina Press, 1955) p. 161.
One should not assume from this that Jefferson was a
pristine liberatarian. As a noted constitutional his-
torian has written, "historians and biographers have
fixed a libertarian halo around the brows of Thomas
Jefferson as if he were a plaster saint, a seraph, or a
demigod .... I find a strong pattern of unlibertarian ,
even antilibertarian thought and behavior extending
throughout Jefferson's long career." Leonard Levy,
Jefferson and Civil Liberties; The Darker Side (Cambridge;
Belknap Press, 196 3) , pp. ix, xii. Cited hereafter as
Levy, The Darker Side.
59. Jethro K. Lieberman, Understanding Our Constitution
(New York: Walker and Co., 1967), p. 107.
60. Oscar Handlin, preface to Levy, The Darker Side, p. vii.
61. Montana, Constitutional Convention 1971-1972, Constitu-
tional Convention Commission, Sources of the Montana
State Constitution , prepared by Elbert F. Allen, Montana
Constitutional Convention Research Memorandum No. 4
(Helena, 1971) , pp. 2-3.
-45-
-46-
CHAPTER III
ARE STATES' BILLS OF RIGHTS NECESSARY?
There is some question as to the necessity of a state having
a declaration of rights at all. This is true despite the fact
that one commentator, noting the heritage of bills of rights
in American history, has said "undoubtedly, it is un-American
even to raise the question of whether a contemporary state
constitution ought to contain a bill of rights. "1
This question can be discussed under, roughly speaking, three
headings: (1) the argument that the principle of popular sov-
ereignty assures that the individual will not be denied his
rightful civil and political liberties; (2) the contention
that the increased applicability of the federal Bill of Rights
to the states through the Fourteenth Amendment makes state
provisions an unnecessary duplication of existing federal
guarantees thereby adding to confusion in the civil liberties
area; and (3) the theory that the states should function as
the primary enunciators and testers of new rights.
POPULAR SOVEREIGNTY
On the first point, it is suggested below that the principle
of popular sovereignty--and this is true of other principles
of political theory--is subject to a good deal of misunder-
standing and abuse. Arguably, an example of this can be found
in the famous series of essays in which three Founding Fathers
attempted to secure ratification of the United States Constitu-
tion in New York.
In these essays (The Federalist Papers) , Alexander Hamilton
took the anti-Federalists , who were alarmed over the lack of
a declaration of rights in the proposed U.S. Constitution,
to task. He argued that a bill of rights in the proposed
constitution would be not only unnecessary but dangerous .
Hamilton was worried that excepting certain acts out of powers
of government that were not even granted would "afford a
colorable pretext to claim more than were granted." In other
words, Hamilton believed that the federal government had no
power whatsoever in the area of civil liberties and that to
enumerate certain rights would imply that the newly created
government had powers that it was not intended it should
possess . ^
Accordingly, he earnestly believed that "bills of rights had
no application to constitutions, professedly founded upon the
-47-
ARE STATES' BILLS OF RIGHTS NECESSARY?
power of the people, and executed by their immediate repre-
sentatives and servants. ..." and that "in strictness, the
people surrender nothing; and as they retain everything they
have no need of particular reservations." That is, the
people were supposedly surrendering no powers over their civil
liberties by ratifying the Constitution.-^
Other Federalists also supported Hamilton's contention, be-
lieving that the people hold all power in their hands, that
they are cautious in their delegation of it to their servants ,
and that they hold their servants accountable at frequent
intervals for the smallest mal-administration. '*
Even if this theoretically vigilant citizenry were plausible,
the question still would be valid as to how such a body pol-
itic would formulate and defend specific substantive and
procedural safeguards. In addition, it seems quite clear that
without the then-existing state declarations of rights the
Federalists would not have been so averse to attaching a bill
of rights to their Constitution. In any case, "the public
mind found this [the Federalists] reasoning specious" and
felt that even those safeguards that were written into the
Constitution were inadequate. ^
Accordingly the public demanded a separate bill of rights to
be appended to the Constitution, arguing that precisely be-
cause any constitution was
a great political compact between the governors and
the governed, a plain, strong, and accurate criterion
by which the people might at once determine when,
and in what instance their rights were violated, is a
preliminary, without which, this [Constitution] ought
not to be adopted.^
Now that the federal government exercises considerable powers
over the civil liberties area, there is little doubt as to
the desireability of a federal Bill of Rights to check the
federal government. It would, however, amount to a strange
historical reversal to argue that the federal government, which
was not originally envisioned as having powers in the area of
civil liberties, and its activity in the civil liberties field
should suddenly become the reason for excluding declarations
of rights from state constitutions.
No state constitution-makers have accepted the logic of a
principle of popular sovereignty replacing written guaran-
tees of civil liberties. It seems true, as noted by Robert
Rankin, that "nothing is lost and much is gained by having
•48-
ARE STATES' BILLS OF RIGHTS NECESSARY?
a statement of the liberties of the people included as a
part of the constitution."^
FOURTEENTH AMENDMENT AND STATES
It has been noted that, at least during one period in the
nation's history, the declarations of rights in the various
state constitutions were thought sufficient protection for
civil liberties. Thus, the Federalists were found arguing in
ratifying conventions that the clamor for a federal bill of
rights was a smokescreen, an unnecessary restraint on a power
that did not exist and an unnecessary encumbrance in the
fundamental law. In the words of Alexander Hamilton, opening
the Federalist Papers , "an over-scrupulous jealousy of danger
to the rights of the people . . . will be represented as mere
pretense and artifice, the stale bait for popularity at the
expense of the public good. "8
Of course, these arguments did not prevail and a federal Bill
of Rights was drawn; however, there was still nearly universal
agreement among Federalists and anti-Federalists alike that
the prime guarantors of civil liberties were the states. No
such consensus exists today. More and more, since the mid-
1920s the federal government has come to press states, which
have become a brake rather than an accelerator in the area of
civil liberties.^
All the states, not just the of t-scapegoated Southern states,
have been compelled to step up their application of rights in
substantive as well as procedural areas. For example, David
Fox, writing a preparatory report for the recent New York Con-
stitutional Convention, noted that the primary impetus for
the badly needed revision of the New York bill of rights was
that:
[M]any of the provisions of the Federal Bill of Rights
are now applicable to state action, and the decisions
applying these provisions to the states have generally
required greater protection of civil liberties than was
required under New York decisional law interpreting the
comparable New York provision. ■'-'^
His report, in the main, is a discussion of the changes needed
to update those provisions in the face of the federal decisions
on his own admission he deals with other state provisions to
a lesser extent. Fox's preoccupation with revising the state
level guarantees to conform with federally imposed standards
-49-
ARE STATES ' BILLS OF RIGHTS NECESSARY?
is indicative of the current universally acknowledged backseat
status of the states in the civil liberties area. The central
vehicle of this federal compulsion is the Fourteenth Amendment
to the United States Constitution. Section 1 of this amend-
ment reads as follows :
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of the United States and the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction
the equal protection of the laws [emphasis added] .13
Within five years of the ratification of the Fourteenth Amend-
ment, the "privileges and immunities" clause was rendered a
practical nullity by a decision of the United States Supreme
Court. 12 In the famous Slaughterhouse Cases of 1873, a bare
majority of the Court said that to use this clause
to transfer the security and protection of all the civil
rights. . . to the Federal government, ... to bring
within the power of Congress the entire domain of civil
rights heretofore belonging exclusively to the
States, . . . [and to] constitute this court a perpetual
censor upon all legislation of the States, on the civil
rights of their own citizens, with authority to nullify
such as it did not approve as consistent with these
rights. . . [would amount to] a great departure from the
structure and spirit of our institutions.
The result, then, of such a federal ascendancy in the area of
civil liberties would be "to fetter and degrade the State
governments by subjecting them to the control of Congress, in
the exercise of powers heretofore conceded to them. . . ."^-^
Accordingly the Court ruled a privilege terminated by the state
of Louisiana — the privilege of pursuing the lawful calling of
butchering animals — was one belonging to the citizens of the
state as such. Therefore, the security and protection of such
a privilege was a matter of state concern and not under the
care of the federal government. In these cases the 1873 Court
majority did list some privileges and immunities which were
enforceable by the federal government. These included, how-
ever, only those rights which owed their existence to the
federal government: the right of access to the seat of govern-
ment, the right of federal protection on the high seas, and
-50-
ARE STATES' BILLS OF RIGHTS NECESSARY?
SO on. The only personal liberties held to be protected in-
cluded the right of access to the courts in the several
states, the right of assembly and the principal procedural
remedy, the writ of habeas corpus.-'-^
Almost immediately, however, the Court began to expand the
list of guarantees protected as "privileges and immunities."
These came to include the right to pass freely from state to
state, the right of petition, the right to vote for national
officials, the right of access to public lands and others. ^^
Further extensions of the clause included the right to use
municipal streets and parks for discussion of a federal
statute, 16 the rights of indigents to migrate from state to
state^^ and several others.
Currently the privileges and immunities clause still operates
to extend federal protections against state encroachments of
civil liberties. However, it is another clause of the Four-
teenth Amendment--the due process clause — that operates to
the greatest degree to extend federal civil liberties protec-
tions. This was not the case immediately after its adoption,
however. The Fourteenth Amendment due process clause, it
should be noted, is a duplication of a similar clause in the
Fifth Amendment which operates as a procedural and substantive
check on the federal government. The Fourteenth Amendment pro-
vision is (as indicated by the above wording of Section 1)
directed explicitly to state behavior.
Early Supreme Court decisions, including the above-mentioned
Slaughterhouse Cases, were refusals to apply the clause to
alleged abuses in rate regulations by state legislatures.-^^
The Court attempted during this time to avoid defining in
which cases it would exercise the power of judicial review in
ruling on the constitutionality of various state actions.
Within six years, however, indications surfaced that the Court
would begin scrutinizing every type of state legislation,
whether it had primarily a procedural or substantive impact,
in any case where essential questions of justice were raised.
Justice Mathews made this point in an 1884 Supreme Court case:
[A] rbitrary power, enforcing its edicts to the injury
of the persons and property of its subjects, is not law,
whether manifested as the decree of a personal monarch
or of an impersonal multitude. And the limitations
imposed by our constitutional law upon the action of
the governments, both State and national, are essential
to the preservation of public and private rights,
notwithstanding the representative character of our
political institutions. The enforcement of these
-51-
ARE STATES' BILLS OF RIGHTS NECESSARY?
limitations by our judicial process is the device of
self-governing communities to protect the rights of
individuals and minorities, as well against the power
of numbers, as against the violence of public agents
transcending the limits of lawful authority, even when
acting in the name and wielding the force of govern-
ment.!^
An increasing number of direct appeals to the Court, especially
for the adequate protection of property rights against various
state efforts at remedial social legislation passed in the
face of industrial expansion, led the Court to begin applying
the due process clause more vigorously. Using the readily
available notion that the states did not have the kinds of
powers which they held prior to the Civil War, the Court be-
gan the process of overturning the Slaughterhouse Cases, and
others, converting the dissents of those cases into majority
opinion. In doing so, the Court accepted limited views of the
police power of the states , holding that states could pursue
only those policies which promoted the public health, morals
and safety. Too, such pursuit of public purposes could un-
reasonably violate the natural rights of persons under state
jurisdiction. ^0
The Court then turned its primary attention to writing into
this narrowed conception of the state's police power some of
the central tenets of laissez faire economics. The prevalence
of Social Darwinism in the Court's opinions led to the con-
ception of "liberty" as synonymous with a policy of govern-
mental hands-off in what was conceived to be a "private"
economic sphere.
An example of the direction the Court was to take regarding
the more personal aspects of the due process guarantees can
be seen in a 1923 Supreme Court case. Noting that it had not
attempted to exactly define the liberty guaranteed by the due
process of law clause, the Court said:
[T]he term [liberty] has received much consideration
and some of the included things have been definitely
stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to
worship God according to the dictates of his own
conscience, and generally to enjoy those privileges
long recognized at common law as essential to the
orderly pursuit of happiness by free men.^-'-
-52-
ARE STATES' BILLS OF RIGHTS NECESSARY?
In fact, the Court had previously made a similar contention in
1897. In the case Algeyer v. Louisiana, the Court stated:
The liberty mentioned in [the Fourteenth] amendment
means, not only the right of the citizen to be free from
the mere physical restraint of his person, as by incar-
ceration, but the term is deemed to embrace the right
of the citizen to be free in the enjoyment of all his
faculties. . . .^^
In 1925, the Court announced, in Gitlow v. New York, that it
was prepared to
assume that freedom of speech and of the press,
which are protected by the 1st Amendment from abridg-
ment by Congress, are among the fundamental personal
rights and "liberties" protected by the due process
clause of the 14th Amendment from impairment by the
States. 23
In this case, the Court upheld a statute forbidding speech
advocating the overthrow of the government by violence. In
dissent. Justices Holmes and Brandeis argued against such an
abridgment, urging that such a ban was improper unless there
was a "clear and present danger" that such utterance "will
bring about the substantive evils that the State has the right
to prevent." This notion, that speech cannot be limited until
it becomes effective, will be discussed in a subsequent report
on the First Amendment. What is crucial in this case is that
the Court finally took what it conceived to be a fundamental
personal liberty and declared (if only in dictum) that the
federal government could set minimum standards for its enforce-
ment even against states by incorporating it into the Four-
teenth Amendment.
Since this initial step, the Court, using varying rationales,
has gradually and selectively incorporated nearly all the
provisions of the federal Bill of Rights into the Fourteenth
Amendment, giving rise to a vast body of case law and making
a significant contribution to jurisprudence. ^4
That such a process has been ongoing for nearly fifty years,
with reversals of no small magnitude along the way, and that
it has been done on a case by case basis — at least until
recently — is ample indication of the halting nature of the
federal ascendancy in this area. It has never been, and in
the foreseeable future probably will not be, the majority
doctrine of the Supreme Court that the Fourteenth Amendment
-53-
ARE STATES ' BILLS OF RIGHTS NECESSARY?
applies the federal Bill of Rights in toto to the states — even
though this may be what the Court will accomplish in practice
through the gradual and piecemeal incorporation of specific
provisions of the federal Bill.
Even if it became accepted doctrine that the federal Bill of
Rights and all the federal decisional law on the federal Bill
were applicable in toto to the states, the problems of ascer-
taining in detail what such protections mean would still re-
quire a decentralized court system of the kind found at the
state level. In general, such an extension would not alter
the procedure an aggrieved would follow in seeking judicial
remedy for a violation of his civil liberties. If anything it
might only destroy one source of the initiative so necessary
to the maintenance of existing rights and their extension to
meet unforeseen challenges: the state constitution, its pro-
visions on civil liberties, and their case law.
All this supports the contention of one commentator who has
written :
Even if the extent of coverage offered by the
fourteenth amendment could be ascertained, we should
in our own state constitutions set out the rights that
we want protected against invasion by our state govern-
ment. It has become almost a fixed attitude of mind
to look only to the United States Constitution and
ultimately to the Supreme Court of the United States,
for protection against unreasonable state statutes
affecting the citizens of that state. For those who
would halt, or at least slow down, the expansion of
federal power and who would revitalize state govern-
ments, the careful drafting of a state bill of rights
to include all liberties which should be guaranteed
against state action (even if they may also be pro-
tected by the fourteenth amendment) offers a major
challenge. If the states cannot protect their citizens'
fundamental liberties, or are careless about such pro-
tection, then obviously the basic, fundamental vitality
of state governments is immeasurably weakened.
In addition, it should be noted that there is considerable dis-
sension over the recent period of judicial activism on the
part of the Warren Court and its alleged circumvention of the
principles of federalism in its extension of federal civil
liberties protections to bind the states. ^^ Of course, this
means that the federal Court's status as primary guardian of
civil liberties may be only temporary — or at least that it may
not be definitive. An example of the type of measure that
might be taken to curb the Supreme Court's power can be seen
-54-
ARE STATES' BILLS OF RIGHTS NECESSARY?
in a proposal made in the middle 1960s by the Council of State
Governments. This group suggested that the fifty chief
justices of the states should be empowered to sit in review
of all Supreme Court decisions which may affect rights re-
served to the states or to the people. 2' Regardless of the
outcome of this controversy — specific sanctions of the Council
of State Governments type do not appear likely--the point is
the issues of civil liberties are not nearing any final reso-
lution. The whole area is permeated with more questions than
ever will be answered — even if all levels of government vigor-
ously pursued them. As one commentator has said:
It is not that the horizon has already been reached
so that there is no longer any need for the states
to look for new frontiers of freedom to conquer. On
the contrary, there is much yet to be done in the
fulfillment of long-established rights. . . .28
Given the fact that even the partial answers of the United
States Supreme Court — pressed upon the states through the
Fourteenth Amendment — are not clearly acceptable to the public
and legal commentators, and adding to this the fact that not
all the federal guarantees are binding on the states, 29 the
need and potential for a state bill of rights becomes more
clear.
If the Constitutional Convention were to decide to exclude cer-
tain guarantees from the state's declaration of rights on the
theory that they are protected by the federal Bill of Rights,
it would want to be certain that such guarantees were in fact
protected by the federal document. More important, the Con-
vention would want to be certain that the extent of such pro-
tection--as well as the probability that such an interpreta-
tion is durable--is in accord with the delegates' beliefs as
to what should be the extent of protection of state citizens.
Perhaps, since these matters are not subject to clear discern-
ment, the Convention would not want to grant the federal
courts the power to interpret the guarantees in perpetuity
by default. ^0
To recapitulate: first, there is the obvious historical rovoi —
sal mentioned abovG--the state constitutional guarantees
predate those of the federal document. States, which were
once thought to be the primary guarantors of civil liberties,
now find themselves being compelled by the federal government--
not only the Supreme Court--to expand their guarantees of
civil liberties. This comes at a time when a number of
commentators are found castigating the federal government for
usurping state functions. Another group of commentators.
-55-
ARE STATES' BILLS OF RIGHTS NECESSARY?
however, laments the default of the states in failing to
vigorously pursue state functions and thereby necessitating
federal intervention. Especially the latter criticism has led
the states to reconsider steps to act in order to redress what
is viewed as an unhealthy imbalance in the federal system.
This brings us to the final, and most important, consideration
for a state declaration of rights.
THE STATES AS "LITTLE LABORATORIES"
Basically, the argument goes, the states can function as
"little laboratories" in the development and testing of new
rights. Several rationales are offered on this point. It is
much easier for individual states to set the example for a
new right than it is for the state legislatures or the citizen'
ry to set in motion the complex--and, some allege, dangerous--
federal amendment procedure. Too, the state, in testing a
right in a smaller jurisdiction provides other jurisdictions
an example they can assess and adopt or reject.
Seeing this argument, there appears to be no reason why the
state should concede the field of civil liberties to the fed-
eral courts. What the Supreme Court of Wisconsin said of
First Amendment freedoms applies to the whole area of civil
liberties: "A state may permit greater freedom of speech and
press than the Fourteenth Amendment would require, although it
may not permit less."31 The final, and perhaps best, argument
for a strong state bill of rights is the notion that a modern
society is entitled to additional guarantees beyond those
offered by the two century-old United States Constitution. ^2
If one were to accept the federal Bill of Rights as the state
model, he would be relying on a partial list of rights which
James Madison, their draftsman, was not certain were adequate
for his own day, let alone contemporary society.
The above notwithstanding, the "little laboratory" function
has, until recently, gone largely unused. This is reflected
in comparative data which indicates a low level of state
revision activity in the civil liberties area; in fact, one
of the limitations of cross-state comparative data in this
area is that it only reflects the gradual process by which the
states moved out of the civil liberties field. Since the
states have only recently and haltingly revitalized their
approach, trends in this area are not yet clearly reflected;
in short, the potential for state activity is not clear, so
little has been tried. This is regrettable; for, as one
commentator has written, "in the years ahead, it will be
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ARE STATES' BILLS OF RIGHTS NECESSARY?
incioasiiitjiy necessary for the SLates in our Itjderai scheme
to assume a role of activism designed to adapt our law and
libertarian tradition to challenging civilization."^^
BREVITY, CLARITY, AND THE LENGTH OF THE DECLARATION OF RIGHTS
One other consideration deserves note. A rash of material has
been written concerning state constitutions recommending short-
ening the length of the documents in the interests of brevity,
conciseness and clarity. In fact, one of the principal argu-
ments that gave rise to the state constitution revision
activity of this last decade was the need to purge statutory
material from the states' burgeoning fundamental law. This
suggestion, however sensible and even self-evident it may seem,
is not without costs and even dangers . This is especially
the case with the declaration of rights where one expects to
find enumerated the fundamental principles of a body-politic
and a healthy list of fundamental rights which even a majority
cannot easily trangress. What is crucial in this hazy and
complex area of efforts to determine what is constitutional
and what is statutory is that it not be used as an argument to
abort consideration of difficult and controversial matters.
The most fundamental questions are often the most controversial.
An example of the way in which insistence on brevity can lead
to omission can be seen in the work of the National Municipal
League. Arguing that the iModel State Constitution proposed
bill of rights is a "sparse" document free of unnecessary
rhetoric, the League has offered as a model document a declar-
ation of rights which does not recognize its own incomplete-
ness.-^^ That is, the declaration of rights proposed does not
contain a provision announcing that the rights listed therein
should not be construed to deny, disparage, or impair other
rights not listed; there is no Ninth Amendment wording. Omis-
sion of such a statement implies that the list is complete.
Reference to the essay on Unenumerated Rights in Chapter IX
of this report indicates the extent to which such an omission
flies in the face of the traditional understanding of the
written guarantees of civil liberties. They were frankly
recognized as motley lists which needed a statement of the un-
enumerated rights doctrine to be certain that governments
could not decide that the list was complete.
At the same time the League was omitting a statement of the
unenumerated rights doctrine in Article I of the Model State
Constitution , Article II of that document gave constitutional
status to the principle that the state government "should have
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ARE STATES' BILLS OF RIGHTS NECESSARY?
all powers not denied by this constitution or by or under
the Constitution of the United States. "-^^ In doing so, the
League announced that "the intention here has been to over-
come the judicial rule of construction — expressio unius est
exclusio alterius-- [the expression of one is the exclusion
of the other]. . . ."■^° The obvious question is whether
this reasoning should not be applied — rather, continue in
application--to the guarantees of civil liberty as well as
the powers of government. If the principal fear of excessive
verbiage in the state constitution is that it may be viewed
as a limitation on state governmental powers, the provision
mentioned above guaranteeing to the state all essential govern-
mental powers should allay that fear. However, if the fear of
excessive wording in the state constitution results in a
closed-end bill of rights with no written clause providing
for its expansion, delegates should be aware that an essential
principle of written guarantees of civil liberties is being
discarded.
Clarity, likewise, is a virtue; but it is not an absolute;
nor is it necessarily precluded by expounding a point, or a
right, at length. That is, a well-drawn provision may be
quite long and still maintain clarity throughout its length;
in fact, some provisions may need to be written at length to
achieve any degree of clarity at all.
Coupling the above with the idea of the states functioning as
"little laboratories" for new rights makes the point more
clear. To be certain that the precise convention intent is
followed in subsequent court interpretations of a newly
enunciated right, the constitution-maker may need to set a
new right down at considerable length in the interest of being
explicit.
CONCLUSION
To sum up: the concept of popular sovereignty is not thought
to be a substitute for a specific list of rights; the Four-
teenth Amendment does not apply the federal Bill of Rights
in toto to the states (theoretically speaking) and even if it
did it only sets a floor of minimum standards; the states
could take the lead in initiating new rights by incorporating
them into their declarations of rights; and, equally important
as the rest, a sound declaration of rights is not necessarily
a short one.
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ARE STATES' BILLS OF RIGHTS NECESSARY?
In conclusion, it appears true, as one writer has said:
It is scarcely possible to exaggerate the importance
of the role to be played by the state Bill of
Rights during the next 100 years . . . . To be truly
fundamental and meaningful any new Bill of Rights must
aim for two goals: (1) preserving that enduring herit-
age of the past that has served us well, and (2)
anticipate the fundamental trends of the future and
safeguard human dignity and liberty for that era.^'
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CHAPTER III
NOTES
1. Lester S. Mazor, "Notes on a Bill of Rights in a State
Constitution," Utah Law Review 40 (1966): 327. Cited
hereafter as Mazor, "Notes."
2. Alexander Hamilton, Federalist Papers (New York: New
American Library, 1961) No. 84. Cited hereafter as
Federalist Papers. Madison expressed a similar fear.
See Chapter II.
3. Ibid.
4. Gordon S. Wood, The Creation of the American Republic:
1776-1787 (Chapel Hill: University of North Carolina
Press , r969), p. 536. Cited hereafter as Wood,
The American Republic.
5. Osmond K. Fraenkel, Our Civil Liberties (New York: The
Viking Press, 1944), p, 2.
6. John Smilie. Cited from Wood, The American Republic,
note 32, p. 541.
7. Robert Rankin, The Bill of Rights (New York: National
Municipal League"^^ 1960) p. 4 .
8. Federalist Papers, p. 35.
9. Mazor, "Notes" pp. 34 5-6 wherein it is noted that some
of the federal government activity reflected state
practice in the civil liberties area.
10. David L. Fox, "New York Bill of Rights: Revision in the
Federal System^' in New York, Essays on the New York
Constitution (South Hackensach, N.J.: Fred B. Rothman
and Co., 1966), Chapter II.
11. See Appendix C for full text of the Fourteenth Amendment,
12. Slaughterhouse Cases, 16 Wall. 36 (1873). Cited from
Edward S. Con\7in, ed.. The Constitution of the United
States of America (Washington, D.C.: Government Printing
Office, 1953) , p. 965.
13. 16 Wall. 36, 71, 77-79.
14. Ibid, p. 79.
-61-
NOTES
15. For a list of these, see Twining v. New Jersey, 211 U.S.
78, 97-8 (1908).
16. Hague v. CIO, 307 U.S. 496 (1939).
17. Edwards v. California, 314 U.S. 160, 177-183 (1941).
18. 'lunn V. Illinois, 94 U.S. 113 (1877).
19. Hurtado v. California, 110 U.S. 516, 536 (1884). It
should be noted that in this case the Court was holding
that although the due process clause required the
states to be "fair" in their judicial procedures, it
did not require the states to abide by the standards of
the federal Fifth and Sixth Amendments.
20. Loan Association v. Topeka, 20 Wall. 655, 663 (1875),
Mugler v. Kansas, 123 U.S. 623, 661. For examples of
the converted dissents, see Slaughterhouse Cases, 16 Wall.
36, 116, 122 (1873) (Bradley, J., dissenting opinion)
and Munn v. Illinois, 94 U.S. 113, 141-148 (1377) (Field,
J., dissenting opinion) .
21. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
22. Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897).
23. Gitlow V. New York, 268 U.S. 652 (1925).
24. Over the years, the Court has incorporated the following:
From the First TVmendment, the establishment clause.
Ever son v. Board of Education, 330 U.S. 1 (1947);
freedom of religion, Cantwell v. Connecticut, 310 U.S.
296 (1940); freedom of speech and press, Gitlow v. New
York, 268 U.S. 652 (1925); and the right of assembly,
DeJonge v. Oregon, 299 U.S. 353 (1937). From the Fourth
Amendment, freedom from unreasonable searches and
seizures, Wolf v. Colorado, 338 U.S. 25 (1949),
Mapp V. Ohio, 367 U.S. 643 (1961). From the Fifth Amend-
ment, the right against self-incrimination. Ma Hoy v.
Hogan , 387 U.S. 1 (1964), Miranda v. Arizona, 384 U.S.
436 (1964). From the Sixth Amendment, the right to a
fair, impartial, public trial with the assistance of
counsel in circumstances where the Supreme Court considers
it essential, Powell v. Alabama, 287 U.S. 45 (1932),
Gideon v. WainwrTght, 372 U.S. 335 (1963). From the
Eightli Amendment, the freedom from cruel and unusual
punishments, Louisiana v. Resweber, 329 U.S. 459 (1947).
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n(vd;s
25. James 1'. Hart, "The Hill of Kifjlits: Safeguard of Individ-
ual Liberty" Texas Law P.evicw 35 (1957): 924.
26. For a beginning in this debate, see J. H. Choper, "On
the Warren Court and Judicial Review," Catholic University
Law Review 17 (1967) : 20 and Yale Kamisar, "On the
Tactics of Police-Prosecution Oriented Critics of the
Critics of the Courts," Connecticut Law Quarterly 49
(1960): 436.
27. James O. Monroe, "To Preserve the United States,"
St. Louis Law Journal 8 (1964): 533.
28. riazor, "Motes," p. 346.
29. For example, the Fifth Amendment right to a grand jury
indictment, the Second Amendment right to bear arms,
and the Sixth and Seventh Amendments rights to trial by
jury are not yet applicable to state behavior.
30. Vern Countryman, "Why a State Bill of Rights?" Washing-
ton Law Review 45 (1970): 455. Cited hereafter as
Countryman, "State Bill."
31. McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 121 N.W.2d
545 (1963) . That there exist cases where states have
extended the free expression guarantees beyond the
federal interpretation has been noted in riiller, "Freedom
of Expression Under State Constitutions," Stanford Law
Review 20 (January, 1968): 330.
32. Countryman "State Bill," p. 455.
33. John fl. Steel, "The Role of A Bill of Rights in A Modern
State Constitutior^" Washington Law Review 45 (1970) : 453.
34. National Municipal League, Model State Constitution,
6th ed. rev. 1968 (New York: The League, 1963, 1968) ,
pp. 25-36. See Chapter IX, essay on Unenumerated Rights.
35. Ibid. , pp. 36-38.
36. Ibid. , p. 37.
37. Arval A. Morris, "New Horizons for a State Bill of Rights,"
Washington Lav; Review 4 5 (19 70) : 4 85-6.
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-64-
CHAPTER IV
PREAMBLE AND POLITICAL THEORY PROVISIONS
PREAMBLE
We, the people of Montana, grateful to Almighty
God for the blessings of liberty, in order to
secure the advantages of a state government,
do, in accordance with the provisions of the
enabling act of congress, approved the twenty-
second of February, A.D. 1889, ordain and es-
tablish this constitution. [Montana Const. Pre-
amble]
The most debated subject within the Preamble of the Montana
Constitution--indoed, one of the most debated subjects within
the entire declaration of rights--is the inclusion of refer-
ence to God. In the 1884 constitutional convention, delegate
Fergus, surely one of the most dynamic personages of that
meeting, moved to amend the proposed Preamble by striking
mention of the "Great Legislator of the Universe."! in a
statement supporting his amendment, Fergus, apart from a
compelling discussion of the provisional existence of all
nations, languages and religions, articulated his opposition
to the inclusion of God in the Preamble. He saw it as an
encumbrance to the fundamental law and said that, in search-
ing in vain for the benevolent protection of God, he had
noticed that "the Engineer asks not God to stay their mad
careen but applies the air brakes." Continuing in an opposi-
tion of natural law to theological tenet, he noted that
"Jefferson in a more superstitious age and the framers of the
national Constitution pandered not to popular prejudice" on
the issue and that was why the federal Constitution did not
mention God in its preamble. Hov;ovor, his amendment was lost
and the Convention moved on to consider the declaration of
rights proper. At the conclusion of the debate on the decla-
ration article, a motion was made to adopt. Delegate Callaway
rose to explain his vote and, after an abrupt exchange with
the Chair over his purpose in rising, continued the debate
against having "God Almighty running with six-month old
calves" in a Preamble "written by some old crank in Massachu-
setts a hundred years ago. ..." The final vote on the
Preamble was for passage, 33-3.2
The 1889 Convention also debated at considerable length the
mention of God in the Preamble. Delegate Knowles of Silver
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PREA.MBLE AND POLITICAL THEORY PROVISIONS
Bow argued that "a religion that would acknowledge Buddha as
the fountain of religion would be as appropriate here in this
country as the Christian religion."-^ He also noted that
atheists were as good citizens as the God-fearing.
Sprinkled amidst statements that the Preamble was merely a
matter of taste and that anyone present at the Convention
could write one came the arguments favoring inclusion. Dele-
gate Whitehill argued, erroneously, that all cultures "recog-
nize the fact that there is an Almighty God" and, perhaps
correctly, that "it is proper in this connection to shov; our
gratitude to the great Creator — to show our gratitude for the
blessings of liberty we enjoy. "^ Delegate Maginnis added that
he felt
the reference to the Supreme Power is broad enough
to embrace all sects and creeds--even the most
advanced advocates of the new scientific thought
may be content with it as the formation of a
name for the primal energies of the universe,
which, in their minds, is the first grand cause of
all. 5
The arguments for inclusion of the mention of God carried by
voice vote. A later effort to amend to exclude reference to
God was voted dov/n 4 4-23.^
Apart from the somewhat humorous style of debate on this
issue, the fundamental question raised does deserve consider-
ation. Does the constitutional recognition of God in the
Preamble mitigate against the free exercise of religion and
separation of church and state clauses? On this point.
Justice Douglas has noted that "freedom of religion should
include freedom to be an atheist, an agnostic, or a spiri-
tualist."^ Contrast this with the applause Delegate Maginnis
received when he announced that the atheistic (and perhaps
he would have included agnostic) answer to questions of the
origin of the universe was unsatisfactory and the crux of
the issue surfaces. The arguments phrased in whatever de-
bate occurs on this issue probably also will be utilized
in the debate on the separation of church and state.
The Preamble of the Montana Constitution also mentions the
Congressional Enabling Act of February 22, 1889, and an-
nounces that the state Constitution is ordained and established
"in accordance with" that act. Delegate Maginnis, in an
unsuccessful attempt to have this provision stricken, said:
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PREAMBLE AND POLITICAL THEORY PROVISIONS
"I hold that we establish this Constitution by virtue of the
inherent right of the people, and it is not necessary to refer
to the Enabling Act of Congress."^ The fact that the refer-
ence was changed from "by virtue of" to read "in accordance
with" satisfied Maginnis and sustained its inclusion over
further objections.
In commenting on the Preamble, the Constitution Revision Com-
mission subcommittee on the bill of rights said: "The present
preamble refers to the Enabling Act, which provides for the
people of North Dakota, South Dakota, Montana, and Washington
to form constitutions and state governments and to be admitted
into the Union, on an equal footing with the original states.
This reference is unnecessary.""
Apart from the above considerations, the Preamble is a brief
and standard introduction to the body of the Montana Consti-
tution. It is a reasonable facsimile of the preamble of near-
ly every other state constitution. However, some criticism
could be made of it as a basically uninspiring statement when
compared, for example, v/ith the Preamble of Montana's 1884
document:
The object of the institution, maintenance and
administration of government is to secure the exist-
ence of the body-politic, to protect it, and to
furnish the individuals who compose it, with the
power of enjoying in safety and tranquility their
natural rights and the blessings of life; and
whenever these great objects are not obtained, the
people have a right to alter or change their form
of government, and to take measures necessary for
their safety, prosperity and happiness.
The body-politic is formed by a voluntary associa-
tion of individuals; it is a social compact by
which the whole people covenant with each citizen
and each citizen with the whole people, that all
should be governed by certain laws for the common
good.
It is the duty of the people, therefore, in framing
a constitution of government to provide for an
equitable mode of making laws, as well as for an
impartial interpretation and a faithful execution
of them, that every man may at all times find his
safety in them. VJe, therefore, the people of Montana,
acknowledging with grateful hearts the goodness of
the Great Legislator of the Universe, in affording
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PREAMBLE AND POLITICAL THEORY PROVISIONS
us, in the course of His Providence, an opportunity,
deliberately and peaceably, without fraud, violence,
or intimidation of entering into an original, ex-
plicit and solenm compact with each other, and of
forming a constitution of civil government for our-
selves and our posterity; and devoutly imploring His
direction in so grand and interesting a design, do
agree upon, ordain and establish the following decla--
ration of rights and form of government as the Con-
stitution of the State of Montana.
In this connection, the recent Illinois Constitutional Conven-
tion's Committee on the Bill of Rights proposed a preamble
(which was adopted) of somewhat more moderate length designed
to preserve the character of the older preamble while adding
other phrases that reflect contemporary concerns. Such pro-
visions included the maintenance of an orderly and representa-
tive government, the elimination of poverty and inequality,
the establishment of legal, social and economic justice, and
the full development of the individual. This suggests that
some wording reflecting the understanding of the function and
purpose of government could be included and could augment
the function of the preamble as the source of future thought
about the nature of that "body politic" which government is
instituted to secure. 10 Some indication of the potential value
of a carefully worded preamble can be seen in the following,
written by Alexander Meiklejohn:
We do not understand what a free government is when
we interpret its making and administering of laws as
merely repressive, as merely limiting the action of
men. All the repressive and regulatory activities of
the Constitution are incidental and secondary features
of a creative, constructive undertaking, namely, that
of which its Preamble speaks [emphasis added] .11
POLITICAL THEORY PROVISIONS
Introduction
The Montana Constitution contains the following provisions
which basically are expressions of political theory:
Art. Ill, Sec. 1--A11 political power is vested in
and derived from the people; all government of right
originates with the people; is founded upon their
will only, and is instituted solely for the good of
the whole.
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Art. Ill, Sec. 2--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, when-
ever they may deem it necessary to their safety and
happiness, provided such change be not repugnant to the
constitution of the United States.
Art. Ill, Sec. 3 — All persons are born equally free, and
have certain natural, essential, and inalienable rights,
among which may be reckoned the right of enjoying and
defending their lives and liberties, of acquiring,
possessing, and protecting property, and of seeking and
obtaining their safety and happiness in all lawful ways.
Art. Ill, Sec. 5 — All elections shall be free and open,
and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of
suffrage.
Art. Ill, Sec. 22--The military shall always be in strict
subordination to the civil power; no soldier shall in
time of peace be quartered in any house without the con-
sent of the owner, nor in time of war, except in the
manner prescribed by law.
Art. IV, Sec. 1--The powers of the government of this
state are divided into three distinct departments; The
legislative, executive, and judicial, and no person or
collection of persons charged with the exercise of powers
properly belonging to one of these departments shall
exercise any powers properly belonging to either of the
others, except as in this constitution expressly directed
or permitted.
There is some question as to the propriety of retaining such
statements of political theory in the declaration of rights.
The argument for their exclusion goes something like this:
statements of political theory are hortatory, generally are
not the subject of judicial interpretation and therefore are
unenforceable. To include them in a section of the constitu-
tion that exists for the sake of some citizen control of
government--that exists primarily to be enforced--is to run
the risk of undermining the enforceability of the explicit
substantive and procedural rights expressed in the declara-
tion. ^^ This argument sounds even more plausible if one
agrees that the judicial enforceability of the various civil
liberties provisions is the main source of their capacity to
limit government. While not denying, by any means, the
expanding and crucial role the judiciary has come to play in
-69-
PREAMBLE AND POLITICAL THEORY PROVISIONS
these matters, most writers indicate that the motor force of
written guarantees of civil liberty is a political vitality
that is distinct from the deliberative qualities of the
judiciary. In general, it is argued that the enforceability
and even the interpretation of the guarantees had more to do
with the public attitude toward the rights. For example,
it is said that even "the Court's authority [in civil liber-
ties matters] ultimately is rooted in the esteem in which it
is held by the electorate. . . ."^^
The provisions of political theory embodied in nearly all
state constitutions are phrased in language reflective of
the spirit of the seventeenth century Puritan Revolt in Eng-
land.-^'* This is not too surprising, considering that the
leaders of the American Revolution were very well read in the
history of the English constitution. Their demand for written
guarantees of certain civil liberties was a genuinely politi-
cal--as distinguished from purely legal--insistence that the
contemporary understanding of certain rights and principles
be made verbally explicit. Moreover, the well-spring of this
insistence was precisely in concepts (such as popular sover-
eignty, inalienable rights and consent of the governed) ex-
pressed in the statements of political theory in various
English and colonial documents and discussed in the works of
various political philosophers. Given the outcome of the
colonial insistence (separation from England and a revolu-
tion) , it becomes clear that there is a closer than imagined
relationship between the enunciation of supposedly unenforce-
able political theories and ideas and the sifting and distil'-
lation of these notions into concrete, even commonplace,
legally enforceable doctrines.
Two examples of this , taken from the American colonial exper-
ience , come to mind. First, the famous expression of the
revolutionary period "no taxation without representation"
later became the right to vote and gradually was expanded into
universal suffrage. It is now accepted as an essential aspect
of representative government and has given rise to an almost
undigestable body of electoral procedure and law. Second,
the development of the notion of separation of powers, trace-
able to classical antiquity, became the impetus for nearly all
the constitutional reforms suggested in the post-Independence
period. In addition to this standard tripartite division of
powers, the political discussion and critical re-evaluation
of the principle culminated in a doctrine of checks and
balances. The theory of checks and balances provided, in a
way that the traditional separation of powers doctrine never
could, the rationale for such inter-branch actions as the
executive veto and judicial review. ■'-^
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Perhaps even more significant is the timing of the argument
over the possible exclusion of statements of political theory
from the fundamental law. The consensus of presumption on
these principles within the academic discipline of political
science recently has broken down. At the time when serious
political theorists are beginning to assess the meaning of
certain key political concepts and to question thoroughly the
contemporary understanding (or lack of it) of these notions,
there is a move to exclude them from the fundamental law.
Perhaps this is testimony to a situation "in which certain
notions . . . have begun to lose their clarity and plausibil-
ity because they have lost their meaning in the public-political
reality--without altogether losing their significance [empha-
sis added] . "ifc"
In any case, this occurs precisely at the time when a substan-
tial group of political theorists is pointing to a misunder-
standing of these principles as a matter of overwhelming con-
temporary relevance. They argue that the political principles
of the American republic need to be re-examined and perhaps
given new meaning to match their timeless significance. The
words of Archibald MacLeish make the point:
For a century, and more than a century, the words
Jefferson used [in the Declaration of Independence]
had worn smooth in men's mouths. The actual meaning
had left them. They went from hand to hand like coins
whose inscriptions all men recognize and no men read
or see. But now in these dangerous years, when every
preconception, every easy understanding, has been
questioned by brutality and violence, the words take
shape again, and taking shape, take meaning. Gradually
out of the darkness of this time the image of the world
Jefferson imagined gathers light and assumes the form
it had to him and his contemporaries.-'-'
The point is not that the Jeffersonian world is in resurgence;
rather, it is that the principles of political order, for
some time taken for granted, are beginning to gain new mean-
ing.
Several state constitutions admonish a frequent recurrence to
fundamental or first principles as a revitalizing force of
political understanding and as necessary to the preservation
of the spirit of liberty. Typical wording of this type of
provision is that of Chapter I, Article 18 of the Vermont
Constitution:
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PREA^4BLE AND POLITICAL THEORY PROVISIONS
That frequent recurrence to fundamental principles,
and a firm adherence to justice, moderation, temper-
ance, industry, and frugality, are absolutely necessary
to preserve the blessings of liberty, and keep govern-
ment free: the people ought therefore, to pay particular
attention to these points, in the choice of officers
and representatives, and have a right, in a legal way,
to exact a due and constant regard to them, from their
legislators and magistrates, in making and executing
such laws as are necessary for the good government of
the state.
Certainly, the first place to which one might recur to deter-
mine the first principles is the state's fundamental law,
especially the declaration of rights where, within the colon-
ial tradition, they are robustly stated. This is the case
when the language of the Declaration of Independence is used
to explain and justify certain political expressions and
actions. And, on this point, one might recall the fact that
the legitimacy of the U. S. Constitution rests squarely on the
basically "hortatory" Declaration of Independence. No one
would think of relegating this document to secondary status —
because it was not judicially enforceable — even though it may
be of great relevance that its language and meaning have "worn
smooth" while still being universally cited.
It is a commonplace that at certain times bodies politic are
given to reassess their foundations — their fundamental assump-
tions about the nature and meaning of public life under a
certain set of institutions. This is, 4^^ fact, a continuing
preoccupation of political philosophy and armchair political
discussions in general. It is the point of calling a consti-
tutional convention. Accordingly, the function of a consti-
tution as a source of public understanding is not limited to
judicial interpretation. The written constitution, particu-
larly the declaration of rights, does not exist only to
enunciate certain procedural rules, institutional frameworks
and substantive rights. It is also a dociiment that announces
some of the central concerns and principles of the constitu-
tion-makers and the political body they constitute; as
Jefferson said, "even though written constitutions may be
violated in moments of passion or delusion, yet they furnish
a text to which those who are watchful may again rally and
recall the people; they fix too for the people the principles
of their political creed. "^^
The point is made more explicitly by a more recent commentator
on bills of rights:
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Courts have frequently declared laws unconstitutional
because they were contrary to some provision of a
bill of rights. Judicial decisions have been made
based upon their clauses. On the other hand, there
are certain types of contents in bills of rights which
were never intended to be used as bases for judicial
decisions . ■^^
This commentator also cites Jameson's well-known treatise on
Constitutional Conventions which offered the following tenative
definition of the term "bill of rights:"
A Bill of Rights consists of solemn declarations of
abstract principles , relating to the origin, ground,
and purposes of government, and practical injunctions
and prohibitions, promulgated with a view to its safe
and equitable administration, digested out of the ex-
perience of the free people of England and America
during six hundred years of struggle for constitutional
liberty and intended as at once a guide and a limita-
tion in the exercise of power.
Jameson went on to say, in a statement more relevant to these
considerations, that he had called
these principles . . . abstract, but only in defer-
ence to the common forms of speech, which thus
characterize whatever is viewed as disconnected from
the circumstances of time and place. Properly con-
sidered, however, those principles are the most concrete
of all, as being such, not simply under certain condi-
tions, but irrespective of all conditions [emphasis
added] .20
For these reasons, and the desire to make more explicit the
values and reasoning underlying the safeguard of certain
liberties and the constitution of a certain frame of govern-
ment, provisions of political theory are found at the begin-
ning of nearly all written constitutions. What follows is an
exploration of the traditional understanding and current
vitality of some of the principles of political theory con-
tained in the Montana Constitution.
Purpose of Government
The purpose of government, the ultimate justification for
establishing by fiat a certain institutional structure, has
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PREAMBLE AND POLITICAL THEORY PROVISIONS
been the object of study and discussion since the earliest
times. The concern of this brief essay is the colonial con-
stitution-makers' understanding of this purpose and its
subsequent reflection in the statements of principle embodied
in state constitutions; implications of such a governmental
purpose also can be outlined in a way that suggests the
potential of a political theory provision which expresses a
paramount concern rather than a justifiable right. At the
outset, it can be said that governments were theoretically
instituted by the colonists to serve only certain limited ends.
Gordon Wood has written that "the sacrifice of individual
interests to the greater good of the whole formed the essence
of republicanism and comprehended for Americans the idealistic
goal of their Revolution. ..." This republican ideology
both presumed and helped shape American's conception of the way
their society and politics should be structured and operated —
"a vision so divorced from the realities of American society,
so contrary to the previous century of American experience,
that it alone was enough to make the Revolution one of the
great Utopian movements of American history." Wood goes on to
say that "given the nature of American society, [this was] . . ,
a desperate attempt by many Americans to realize the tradition-
al Commonwealth ideal of a corporate society, in which the
common good would be the only objective of government [empha-
sis added]. "2-^ At that time, the tenets of Whig republicanism,
while not denying the existence of localized, particular
interests, regarded them as aberrations at best and per-
versions at worst. 2^
Such an understanding of the purpose of government is at least
as old as Plato. But the greatest stress placed on that type
of conception, outside of the colonial period, was in the
writings of St. Thomas Aquinas in the thirteenth century. For
Aquinas, the very idea of law presupposes the common good.
"Law, strictly understood, has as its first and principal ob-
ject the ordering of the common good."^-^ The notion of common
good is found elsewhere too; even Thomas Hobbes invoked it,
admittedly with a view to the good of his theoretical Levia-
than, an indivisible and overbearing sovereign. 24
Another view of the purpose of government can be seen in the
writings of Thomas Jefferson. Supporting the notion that
government is a means, and not an end, and that it is insti-
tuted to serve only certain purposes, he wrote, in the Declar-
ation of Independence: "to secure these rights. Governments
are instituted among men . . . ." Later in life he wrote:
"The equal rights of man and the happiness of every individual
are now acknowledged to be the only legitimate objects of
government. "25 in general, the object of government was, for
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Jefferson, the protection of pre-existing. Creator-given
rights, which all men enjoy under the natural law. 26
At first glance, the above two rationales for the institution
of government appear quite reconcilable; indeed, individual
liberty and the common good were easily reconcilable to most
of Whig ideology in the nineteenth century. "Even at the
beginning, however, there were some good Whigs who perceived
the inherent conflict between individual liberty and tradi-
tional republican theory. "27
Some pointed to ancient Sparta, for example, to argue that
the private pursuit of wealth in property was inimical to
republicanism. Noting a "sad dilemma in politics," it was
argued that to limit the pursuit of wealth in the name of
republicanism's central tenet, the common good, was to destroy
liberty. ("[T]here can be no true liberty without security of
property. ..." said a 1775 issue of the Philadelphia Penn-
sylvania Packet, "and where property is secure, industry
begets wealth; and wealth is often productive of a train of
evils naturally destructive to virtue and freedom. . . I") 2°
In his perceptive writing (in 1830) on certain aspects of
American society, Alexis de Tocqueville spoke to a related
point. He noted that a central predisposition of Americans
was a commitment to the individualistic life style. He went
on to say that this life style
disposes each member of the community to sever himself
from the mass of his fellows and to draw apart with his
family and his friends, so that after he has thus
formed a little circle of his own, he willingly leaves
society at large to itself.
Tocqueville coupled this with another trait he observed in
the American character--"a passion for physical gratifica-
tion" --and added that Americans believe "that their chief
business is to secure for themselves a government which will
allow them to acquire the things they covet and which will
not debar them from the peaceful enjoyment of those posses-
sions which they have already acquired." More important,
he also wrote of the political consequences of these two
traits: "[M]en who are possessed by the passion of physical
gratification generally find out that the turmoil of freedom
disturbs their welfare before they discover how freedom itself
serves to promote it." He warned that at the rumor of such
turrooil, and if any public commotion intruded into the
"petty pleasures of private life," the "fear of anarchy"
triggered the American readiness "to fling away their free-
dom. "29
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PREAMBLE AND POLITICAL THEORY PROVISIONS
This notion of the increased propensity to privatization
of concern in American life claims more adherents than
de Tocqueville. Although they do not always engage in sweep-
ing analysis of the kind quoted above, contemporary political
theorists alternately acknowledge and lament such a turn away
from questions of the public good and ascribe it to various
causes, necessity and deprivation being among them. -^"^
Without going as far as the above-described tension in the
American political climate may deserve--it was, after all,
the central issue Americans had wrestled with since the seven-
teenth century — the point seems to be that there was some
(perhaps not successful) effort in the early American
experience to point the society to an elusive "public
good" at the expense of private, essentially personal,
interests . ^-'-
Perhaps an interesting American political history could be
written dwelling on this tension between the desire to frame
a set of institutions which would enable the piiblic body to
pursue the public good and the simultaneous tendency for
that very public to be drawn off in the concerns of wealth,
property and eventual corruption. In any case, such was and
promises to be one of the central tensions of American polit-
ical development.
The insight of Jean Jacques Rousseau of the eighteenth century
was that "the only legitimate government is that where 'the
public interest governs', where the public thing (res publica)
is felt to be the common concern of all."-^^ That the vision
of the American Revolution was to accomplish this good is
reflected in the statement of Thomas Paine that "the word
repioblic means the public good, or the good of the whole. . .
[his emphasis] ." ^-^ It also is reflected in constitutional
provisions of the type adopted (arguably rubber stamped) by
the Montana Constitutional Convention of 1889 and contained
in nearly all state constitutions.^^
Article 10, Part First of the New Hampshire Constitution
states in part:
Government being instituted for the common benefit,
protection, and security, of the whole community,
and not for the private interest or emolument of
any one man, family, or class of men. . .
Article III, Section 1 of the Montana Constitution provides,
to the same point: "All governm.ent ... is instituted solely
for the good of the whole.'"
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PREAMBLE AND POLITICAL THEORY PROVISIONS
The implications of such a notion are obvious and its place
in the fundamental law perhaps a bit more clear. The prin-
ciple that the common good is the sole justification for
founding a state operates as a gauge of the authority and
legitimacy of governmental institutions in particular and of
society in general. ^^
Popular Sovereignty
Indications of the principle of popular sovereignty are at
least as old as the establishment of the Athenian democracy
in the fifth century B.C. As noted in Chapter II, there
occurred at that time a transition in the terminology and
understanding of the concept "statute." The new term, nomos ,
based the statute's validity on its ratification of principles
acceptable to those who were obligated to obey it.-^" The
principle is expressed in the Montana Constitution's Article
III, Section 1: "All political power is vested in and derived
from the people; all government of right originates with the
people. ..." Section 2 of Article III also contains the
principle: "The people of the state have the sole exclusive
right of governing themselves. ..." Casual reference to
popular sovereignty can also be found in state statutes. The
open meeting law [Revised Codes of Montana, 1947, Sec. 82-3401]
provides :
It is the intent of this act that actions and deliber-
ations of all public agencies shall be conducted
openly. The people of the state do not' wish to abdi-
cate their sovereignty to the agencies which serve
them . . . [emphasis added] .
Special emphasis was placed on the principle of popular sover-
eignty during the colonial period of American history. The
meaning of popular sovereignty can perhaps best be indicated
by a brief look at that period's understanding of the prin-
ciple .
By 1775, John Adams' idea that the people were the "Source of
all Authority and Original of all Power" was not a novel ex-
pression. In fact, both the advocates and opponents of force-
ful separation from England were appealing to the people as
their ultimate justification. In the turmoil of the period,
there was less concern with questions such as who were "the
people," what institutions expressed their will, and how;
the main point was that the principle was universally invoked,
clear meaning aside. ^'
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Thomas Jefferson was one of the leading exponents of the
principle of popular sovereignty. His writings — mostly in
letters--abound with various statements that government was
founded on the will of the people. In a 1793 cabinet opinion,
Jefferson wrote that "the people who constitute a society or
nation" are "the source of all authority in that nation...."
In a 1792 letter he wrote: "It accords with our principles to
acknowledge any government to be rightful which is formed
by the will of the nation substantially declared." And in
an 1819 letter, he wrote: "No government can continue good
but under the control of the people. "^^
Support for the principle of popular sovereignty was much
more widespread than the anti-Federalist persuasion with which
Jefferson became associated. In fact, the Federalists them-
selves turned out to be the leading exponents of the sovereign
power of the people. For example, James Wilson, the leader
of the Federalist ratification effort in Pennsylvania, said:
In all governments, whatever is their form, however
they may be constituted, there must be a power
established from which there is no appeal, and which
is therefore called absolute, supreme, and un-
controllable. The only question is where that power
is lodged. -^^
The English jurist. Sir William Blackstone, in his famous Com-
mentaries had placed the absolute sovereign in the will of
the legislature, in the power of Parliament. Wilson noted
that some Americans had tried to deposit the supreme power
in the state governments. But, according to Wilson, although
recognizing the supreme power of the state governments was
closer to the truth than placing that power in the legisla-
ture, "in truth, it remains and flourishes with the people."
That is to say, the supreme power did not rest with govern-
ment at all, federal or state. "It resides in the people,
as the fountain of government ." ^0 j^ later writings Wilson
again stressed that "the supreme power is in [the people] ;
and in them, even when a constitution is formed, and govern-
ment is in operation, the supreme power still remains."
Popular sovereignty, as conceived of by the Federalist per-
suasion was, then, a power that could never be alienated or
surrendered. ^
Neither the Federalists nor the anti-Federalists were clear
on all the implications of an extended principle of popular
sovereignty; often times the principle was invoked in grandi-
ose terms so its implications could be ignored. In one
instance dealing with one aspect of the principle of popular
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PREAMBLE AND POLITICAL THEORY PROVISIONS
sovereignty, however, most colonial political leaders were
agreed. That colonial accord over the right of revolution is
reflected by the fact that it was stated in a number of the
state's declaration of rights and, of course, in the Declara-
tion of Independence — a document which itself announced a
revolution.
The right also is contained in the Montana Constitution.
Article III, Section 2 provides:
The people of the state have the sole and exclusive
right ... 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.
One commentator, noting that the statement of the right of
revolution is an adjunct to the concept of popular sovereign-
ty, sees that it "might seem radical to more conservative
delegates , and there might be a suggestion of some toning
down of this declaration." But, he adds: "Such a change would,
of course, make no difference in the people's ultimate
power. "^2 Another writer attempts to distinguish between two
types of rights to alter government. In an article adjudging
the compact theory of government as still viable, Stephen J.
Perello, Jr. argues that a person has "a civil right to alter
government constitutionally" and a "natural right to alter
or abolish government unconstitutionally." He goes on to say
that to recognize the "latter natural right would impair those
ends which the constitution is instituted to attain. "'^-^ This
distinction is, however, subject to the criticism that it is
convenient but not quite to the point. Although it can be
granted, as announced in a famous post-Civil War case in-
volving the state of Texas, '^'^ that the Union through the act
of constitution looks to its own perpetuity, it must also be
admitted that the constitution does not see itself as an end
in itself. In fact, constitutions and governments, in the
American conception, view themselves as means. It is perhaps
healthy that the provisionality of a governmental form be
announced to shed some light on the principle of the primacy
of the public will over the established institutions. Such
a declaration does not contradict the statement contained
in the Declaration of Independence:
Governments long established should not be changed for
light and transient Causes; and accordingly all Exper-
ience hath shewn, that Mankind are more disposed to
suffer, while Evils are sufferable, than to right them-
selves by abolishing the Forms to which they are
accustomed.
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Further clarification of this point would take one far afield;
it is sufficient to note that the constitutional recognition
of rights, which on their face seem disruptive of the ends of
the constitution itself, is not unconunon. A further example
of this point is found in Article 10, Part First of the New
Hampshire Constitution which reads, in part: "The doctrine
of non-resistance against arbitrary power, and oppression, is
absurd, slavish, and destructive of the good and happiness of
mankind." The implication of this type of provision is that
there is a kind of healthy commotion which accompanies the
persistent efforts toward social and political justice and
that this commotion serves well the ends a constitution pur-
sues by adding vitality to the means of its realization. ^
As one commentator has written, 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 con-
stitutions.
46
Inalienable Rights
The American commitment to the written document as the assur-
ance that basic rights would be protected is a matter of
record."*' At the same time, however, statements abound to the
effect that inalienable rights and liberties were
not annexed to us by parchment and seals. They are
created in us by the decrees of Providence which
establish the laws of nature. They are born with
us; exist with us; and cannot be taken from us by any
human power, without taking our lives. In short, they
are founded on the immutable maxims of reason and
justice .
48
The inalienable rights are thus held to be prior to govern-
ment and not subject to any governmental power.
The same point can be seen in the positions taken by Feder-
alists Alexander Hamilton and Philip Livingston in answer to
the Tory assertion that since the New Yorkers had no charter,
they had no rights. Both denied that "the sacred rights of
mankind" were "to be rummaged for, among old parchments or
musty records." They also denied an assertion, made even
now, that "any right . . . if it be not confirmed by some
statute law, is not a legal right." Putting rights to parch-
ment did not create them; it only affirmed their existence;
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PREAMBLE AND POLITICAL THEORY PROVISIONS
not only that, but even the repeal or annihilation of the
document which enumerated the basic rights could not (in the
words of James Otis) in any way "shake one of the essential,
natural, civil, or religious rights of the colonists ." ^^
The commitment to the written document contrasted with the
assertions that such rights were not created by the written
document indicates some confusion in the Colonial mind about
the nature of law. Did the colonists' use of a written con-
stitution--a peculiarly American pastime in the eighteenth
century--signify an acceptance of the modern understanding of
law as a command which is limited only by specific, written
rights and constitutional principles? That is, are the rights
of men discoverable only in the gaps of the law as those gaps
are created by specific written controls? On this point, the
colonial understanding was fairly clear. There was common
recognition that since the law could be de jure (by law)
as well as de facto (in fact) unjust, to rely on some con-
ception of the intrinsic justness of the law was insufficient.
What was necessary was that these rights, deduced from self-
evident conceptions of equity and justice, be protected not
as a final attainment of some heavenly freedom, but as a
continued bulwark against the excesses of authority. There-
fore, it was to further protect them that the rights had to
be "specified and written down in immutable documents ." ^^
That these rights are discoverable beyond the limitation of
the temporal law was also a commonplace colonial understand-
ing; again in the words of Jefferson, they were discoverable
in "the laws of Nature and of Nature's God." However, he
also recognized that the effort to secure the rights necessi-
tates that they be distilled and written in some form in the
fundamental law for all to see.
The consequences of this ambiguity over the function of the
written law was carried into the Revolution. Implicit in the
American resort to a written fundamental law was the commit-
ment to the notion of statute law as being created by legis-
lative enactment. Hov/ever, understanding of political
obligation was quite keen and
they were never willing to acknowledge that the
"obligation of the ruled to obey" depended "solely
upon. Be it enacted, etc." and thus continued to
retain something of Otis's conviction that "right-
eousness should be the basis of law." From the time
in 1646 when the Massachusetts General Court declared
that the fundamental basis of all laws is the law of
God and right reason and that "if anything hath been
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PREAI>1BLE AND POLITICAL THEORY PROVISIONS
Otherwise established, it was an error, and not a law
. . . , however, it may bear the form of law," such
a belief in the morality of law had been the central
part of the Americans' legal history in the New
World. 51
That the claim to these rights was not a function of the extent
of the statutory law is also indicated by the use of the word
"inalienable." If a right is inalienable, it is not the kind
which a temporal government can grant or take away. Such
inalienable rights were not part of the social contract "bar-
gain:" government could at best secure them, but it could
provide no substitute for them or impetus to trade them away.
To make the point more clear, one might recall the distinction
Kant made between "value" and "worth." In Metaphysics of
Morals he wrote that
everything has either a value or worth. What has value
has a substance which can replace it as its equiva-
lent; but whatever is, on the other hand, exalted
above all values, and thus lacks an equivalent, . . .
has no merely relative value, that is, a price, but
an inner worth, that is, dignity. ^^
Kant's typically amazing insight sheds some light on the
understanding of the concept of inalienable rights. It is
not that the rights could not be transferred without the
individual's consent, but that their nature made them funda-
mentally untransferable in any case.^-^ In the sense of the
Kantian distinction, they had worth as opposed to value.
Short lists (such as Jefferson's) of the most basic inalien-
able rights, seemingly so broad as to find the approval of
all, have a long history of evolving in the name of a number
of political positions in heated conflicts and controversies.
They also have many implications which are far beyond the
bounds of this report. What is certain is that only the tip
of the iceberg is seen in such constitutional expressions as
that in the Montana Constitution [Art. Ill, Sec. 3]:
All persons are born equally free, and have certain
natural, essential, and inalienable rights, among
which may be reckoned the right of enjoying and
defending their lives and liberties, of acquiring,
possessing, and protecting property, and of seeking
and obtaining their safety and happiness in all
lawful ways.
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Such a provision indicates, but does not sum up, the con-
tinuing struggle to protect the somewhat elusive rights which
no government legitimately transcends.
Consent
The most famous statement of the principle of the "consent of
the governed" is to be found in the Declaration of Independence
where Thomas Jefferson wrote that governments derive "their
just powers from the consent of the governed." As one commen-
tator has written, "if that consent be lacking, governments
have no just powers. "^4
Because the term "consent of the governed" (like others such
as "liberty," "freedom" and "civil rights") is ambiguous, its
mere invocation may mean very little if there is no under-
standing of the meaning one invokes. In fact, the invocation
may be a mask for the common "negative pregnant" wherein one
begins by embracing a principle so he can abuse it at will.
As indicated in the introduction to this chapter, much of the
work currently being done in the area of consent theory is an
effort to take the term as more than a slogan and, taking it
seriously, to attempt to discover its meanings. What follows
is a brief look at some of this contemporary work.
Two examples of contemporary consent theory are especially
interesting in that they argue that consent of the governed
is systematically undermined by a kind of "engineered" or
"manufactured" consent. According to one text, the ideal of
consent of the governed "as it was propounded in our politi-
cal folklore, has meaning only where consent is freely and
independently given by rational, public-spirited citizens. "^^
The authors go on to say that the dominance of interest
group politics , the prevalence of compromise between partial
interest claims in the determination of policy (as opposed to
a pursuit of the public good indifferent to partial claims)
and the refinements of psychologically manipulative techniques
in political advertising--" the selling of the president"--all
add up to a chronic split between the beliefs of traditional
democratic faith and contemporary political practice. ^^ A
similar point is made by Robert Pranger in discussing the
"manufacturing of consent"--an occurrence he judges to be a
part of the "politics of power," not the "politics of partic-
ipation. "^^
In light of the prevalence of those kinds of arguments, it
may be helpful to outline briefly the colonists' understanding
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PREAMBLE AND POLITICAL THEORY PROVISIONS
of consent to indicate whether the principle is still opera-
tive as they understood it. To come to even the most
tentative conclusion on the point is not a matter of indif-
ference if consent is really the source of all legitimate
governmental powers.
One of the arguments offered by persons of Tory bent for the
continued adherence of the colonies to the Crown was that
the colonists' claim that they were being taxed without
representation was erroneous. As the argument went, the
interests of the colonists were represented in Parliament--
the colonists were "virtually" represented. Supposedly, they
were represented by virtue of the fact that each member of
Parliament was a representative of the whole British nation
and its colonies. In arguing that they should be represented
actually, and not merely virtually, the point was raised that
"a supposed or implied assent of the people is not an assent
to be regarded or depended on. "58
Since consent through representation was important in the his-
tory of the unwritten British Constitution, the colonists felt
the same protection should be theirs; they should have the
rights of Englishmen, including the right to vote for their
own representatives. The thrust of the colonial effort to
give meaning to consent then, was to make it more explicit in
its manifestation and more particular in its origin. And the
main measure of the extent of consent was seen to be the ex-
tension of the right to vote to a public-spirited populace.
That the contemporary situation is a good deal different has
been noted by a number of observers of the American political
climate. To say that the public spirit of the colonial period
has been lost is commonplace . ^^ As this was at the root of
the colonial emphasis on explicit consent as the source of
governmental legitimacy, something may very well be missing in
the contemporary meaning and operation of the principle. This
can be seen without going into the implications of an active
principle of consent by returning to the allegations of
"engineered" consent. °"
The heart of such allegations is that the use of the modern
Madison Avenue public-relations firm in a periodic effort to
sell the image of a political candidate (just as commercial
advertising and mass communication sell breakfast cereals and
fastback cars) may operate to cheapen the integrity of polit-
ical dialogue. If, as is charged, commercial advertising is
less information-imparting and more jingle-oriented and
repetitive half-truth, the extension of its practices and
attributes into the political world may serve to render the
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PREAMBLE AND POLITICAL THEORY PROVISIONS
vote to a status where it has little meaning. The electorate
then loses its essential republican function as a genuinely
deliberative tribunal and becomes a stimulated, image-conscious
mass to be titillated at varying intervals, the result being
called "consent. "^1
Whether the methods of mass advertising are appropriate for
the marketplace is not the question. But, as Joseph Tussman
has said in strong terms :
[0]ur attempts at education for democracy, for
participation in public life, are hopelessly per-
plexed by the divergent demands of marketplace and
tribunal. How, for example, shall we teach our
children to communicate with the necessary respect
for the integrity of language, and for each other,
when we support (almost as cultural heroes) a large
class of professional liars to hail with impartial
sincerity the claim of any client? . . . How, sup-
porting such a profession, can we really make the
point that the integrity of communication is the
wellspring of a community's life? It is no answer
to say that we have learned to defend ourselves by
not believing what we hear, or that propaganda will
counter propaganda and the truth will prevail even
though no one tells it. We are poisoning the wells,
and we cannot live on antidotes [emphasis added]."
Packaging products for appeal may be appropriate in the mar-
ketplace; but, the tribunal — the place where deliberation
and not the image is most important--is a different matter.
Such an observation is not new. For example, Kurt Riezler
found illustrations of "engineered" consent as far back as
the writings of Homer and Thucydides . ^^ Jean Jacques Rousseau,
writing nearly two hundred years ago, lamented that the pros-
pects for a free, democratic society were diminished by the
fact that "the arts of pleasing have been developed into a
system. The question is no longer whether a man is honest,
but only whether he is clever. "o^ That is, the moulding of
a pleasurable image using the techniques of mass advertising
may do the concept of democracy and the concept of meaningful
consent a good deal of damage. Such a commitment to the
"profile" and not the "courage" makes the candidate's deep
convictions irrelevant. In doing so, it could call into
question the central concept which for centuries has been said
to define the legitimacy of governmental power: the consent
of the governed. Whatever the status of this principle, the
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PREAMBLE AND POLITICAL THEORY PROVISIONS
above perhaps offers an example of the possibilities for
serious practical and theoretical work on one of the central
principles of traditional democratic theory.
In the last analysis, perhaps, the challenge in the theory and
practice of consent of the governed is that "we must determine
in what sense a free man, a free society, does practice self-
direction. What, then, is the difference between a political
system in which men do govern themselves and a political sys-
tem in which men, without their consent, are governed by
others?" And, perhaps it is no less true that "unless we can
make clear that distinction, discussion of freedom of speech
or of any other freedom is meaningless and futile. "65
The Montana Constitution supplies this question, but not its
answer, with its variant of the notion of consent of the
governed in Article III, Section 1: "all government of right
. . . is founded upon their [the people's] will only. ..."
Free and Open Elections
The Montana Constitution also contains a provision announcing
the principle of free and open elections. Article III, Sec-
tion 5 provides: "All elections shall be free and open, and
no power, civil or military shall at any time interfere to
prevent the free exercise of the right of suffrage."
Unlike the other political theory provisions , there was some
disagreement over the wording of this statement in the 1889
Convention. One delegate argued that the words "and open" —
apart from the fact that they "really add no force to the
section" — might render the use of the secret ballot unconsti-
tutional. Delegate Bickford responded that the use of the
Australian ballot did not preclude an open election. He in-
terpreted the word open to mean that "the polls should be open
to all persons who are legally entitled to vote," that they
should be opened "to all persons who, under the laws of this
Territory and the United States, are entitled to the right of
franchise." After delegate Robinson agreed, delegate Warren
rose and supported the effort to amend out the words "and
open." He perhaps did not understand the subject at hand,
for he urged
it is about time we had an election in this country
that is free and not open. We have had enough of open
elections in this country; and if this clause in this
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PREAMBLE AND POLITICAL THEORY PROVISIONS
Constitution is for the purpose of doing away with or
making a dead letter of the Australian System, which
is now on our statute books, the sooner we know it
the better. 66
In any case, the section was passed with the "free and open"
wording intact and the limited right of suffrage was placed
in the state constitution.
Nearly half of the states have similar provisions. Some also
contain provisions calling for frequent elections. For ex-
ample. Article I, Section 9 of the North Carolina Constitution
provides: "For redress of grievances and for amending and
strengthening the laws, elections shall be often held."
Section 10 of the same constitution provides that "as proper-
ty rights and privileges are not dependent upon or modified
by property, no property qualification shall affect the right
to vote or hold office." Discussion of this and other types
of restrictions on the right of suffrage can be found in the
Montana Constitutional Convention Commission study on
suffrage and elections.
Separation of Powers
All of the first constitutions in the original colonies con-
tained provisions for the establishment of a tripartite sys-
tem of government; six of them specifically distributed the
powers of government to the three branches of government now
taken for granted: legislative, executive and judicial. 67
The Maryland Declaration of Rights, Section 6, was typical of
the early declarations of the principle: "That the legisla-
tive, executive, and judicial powers ought to be forever
separate and distinct from each other." The roots of this
notion go back at least to Polybius's discussion of mixed forms
of government in antiquity, but the more systematic dis-
cussions of the principle took place in seventeenth cen-
tury England. Consistent with their desire to isolate (or
rather, extricate) the legislative functions from the preroga-
tive of the Crown, English radicals developed the principle
during the Revolution and the interregnum. John Locke, some-
times overcredited as the inspiration of the Declaration of
Independence, continued the discussion of separation of powers
in a vague manner. By the early eighteenth century, it was a
prime subject of English polemics. 6° The modern development
of the doctrine of separation of powers was due, however, not
so much to the English radicals or early writers as the work of
the Frenchman Baron de Montesquieu. As one writer has said.
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PREAMBLE AND POLITICAL THEORY PROVISIONS
we should look in vain [to the medieval period] for
any abstract definition or vindication of the
characteristic constitutional model which we asso-
ciate with Montesquieu and his school. ... It was
a political theory . . . which would have appeared
entirely unintelligible to the medieval mind. 69
Montesquieu's influence on the American Revolution was as
strong as that of Rousseau on the French. One of the cen-
tral notions of Montesquieu's work. The Spirit of the Laws,
was that a proper foundation for political freedom rested
on the correct distribution of power. In his effort to show
that power and freedom were to be combined in the public
sphere, he announced the famous, if now forgotten, principle
of separation of powers: that only power arrests power. In
this light, the principle of separation of powers is a
mechanism at the heart of government through which additional
power is generated without being able to monopolize and usurp
the other centers of power. ^0 This, then, is one of the
operative principles of the notion that the power must be
exercised as well as restrained.
The Founding Fathers placed much emphasis on the problem of
balancing powers as they set out to constitute a new center
of governmental power. James Madison referred to it as "a
first principle of free government." John Adams' entire
political thinking revolved around the principle. However,
state governments during this time were apparently not too
concerned with a real division of governmental functions. At
the end of a long struggle to isolate the legislature from the
corrupting influences of the royal governors, the idea of
separation of powers had yet to reach its full significance
at that level of government.
Critics soon saw that the broad principle that required each
branch to independently pursue its respective functions could
be applied by any branch against any other; that is, a prin-
ciple originally designed to protect the legislature from the
executive branch could also be used by the executive to
assert its own prerogative against the legislature. It was
at this point that the oversimplistic meaning of separation
of powers--that each department should be distinct--was modi-
fied by the inclusion of the principle of checks and balances.
And it was from this discussion of the necessity for more
vigorous interdepartmental checks that such additional powers
as the governor's limited veto of legislative actions re-
sulted.
PREAMBLE AND POLITICAL THEORY PROVISIONS
The principle of separation of powers as stated in Montana
(and other state constitutions) reflects the older understand-
ing of the concept. It is worded to insure distinctness of
functions of the various departments and does not reflect the
notion of checks and balances. Article IV, Section 1 of the
Montana Constitution reads:
The powers of the government of this state are divided
into three distinct departments: The legislative,
executive, and judicial, and no person or collection
of persons charged with the exercise of powers prop-
erly belonging to one of these departments shall
exercise any powers properly belonging to either of
the others, except as in this constitution directed or
permitted.
Certainly there is plenty of room for the courts to interpret
the words "properly belonging" so as to permit one branch to
exercise functions which some may conceive to belong to
another; and, the provision does leave the Constitution ample
room to delegate any powers to whatever branch suited the
Constitution-makers. It is also true that tradition to a
certain extent limits the delegation of powers to certain
fairly well-understood patterns. For example, one might not
expect the Constitution to permit the executive to determine
the amount of appropriations, although it could authorize such
an executive power as a line-item veto over specific appro-
priations. Still, the principle of public checks and balances
is not explicitly stated.
As noted above, this problem of checks and balances had its
origin in the writings of Montesquieu and was specifically
applied in the context of American constitution-making. The
division of powers, admirably extended by the men of the
American revolution, is in the main an answer to the question
"how can power be controlled, yet still exercised?" The
answer to the question, that only power arrests power, is
suggestive of the continuing vitality of the principle. ^^ The
core of the notion of separation of powers seems to be that
the exercise of power in a public way by one center of
governmental power checks the exercise of power by another
center of power.
In the contemporary period, there is considerable writing to
the effect that the notion no longer has--if it ever had--a
corresponding reality in the practical political world. For
example: "The attempt to represent government as a triangle
of equal and opposing forces, or as any other simple geomet-
rical figure, is clearly inadequate and misleading. " '^
Surreptitious ties between the executive and the judiciary--
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PREAMBLE AND POLITICAL THEORY PROVISIONS
suggested in the recent Fortas controversy — are said to
threaten the independence of the judiciary and therefore
the principle of separation of powers. In addition, it is
argued that overt ties between the party in power in the legis-
lature and the governor (as titular head of that party) tend
to mitigate against the executive branch effectively checking
the legislature. This was perhaps quite predictable. For
example, as Judge Cooley pointed out nearly ninety years ago,
"executive power is so intimately connected with legisla-
tive that it is not easy to draw a line of separation. . . .^
Without denying the value of an independent judiciary — surely
more vigorously upheld than other features of the separation
of powers in spite of the fact that even Montesquieu held
that "the judiciary is in some measure next to nothing" 74 — or
the value of an autonomous legislature, it should be remembered
that the principle of the distinctness of the branches was
modified early in the American experience in order to permit
the effective centers of power, conceived at that time strict-
ly along branch lines, to publicly check one another. "The
interaction of the various departments is indeed relied on in
part to keep them independent ." ^^
From the increasing contemporary discussion of the principle
of separation of powers, one thing seems clear: the future
status of the principle seems to depend less on distinctness
of the traditional branch lines — that may be myth forever —
than on the public qualities of the arresting interception
within and without the branches.
[I]t is not that there is always a clear-cut dis-
tinction between the functions of legislation and
administration, between the legislative, executive,
and judicial 'powers'. Nor is it supposed that
the functions should be distributed in any perfectly
systematic way to different organs. ^^
An example of the possible contemporary application and
simultaneous extension of the principle of checks and balances
between departments can be seen in the case of the expansion
of the executive bureaucracy. Commentators writing on this
phenomenon in general agree that the immense growth of the
executive branch (to unmanageable proportions which neces-
sitated nationwide some form of "executive reorganization")
is in large measure the result of the delegation to the exe-
cutive of essentially legislative powers. It also has been
noted that the court effort first to curtail, then to demand
specific standards in the delegation of such powers has in
the main, ceased. '' An example of this court effort can be
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PREAMBLE AND POLITICAL THEORY PROVISIONS
seen in the cases where the Montana Supreme Court ruled on
the constitutional status of the Legislative Council. ^°
Given the commonplace assertion that the previous tripartite
distinction of legislative, executive and judicial powers is
no longer realistic--witness "quasi-legislative" and "quasi-
judicial" functions--perhaps the best course to follow would
be to consider ways in which checks not only between but also
within these traditional branches could be set up with a
view to maximize the public exposure of state government. One
suggestion of this type--dealing specifically with the execu-
tive branch--is explored below in the essay on Safeguards in
Administrative Procedure. What appears essential, regardless
of the current status of the principle of separation of
powers, is that "if the principle of government with the con-
sent of the governed has a substantial foundation, there is
need for effective limitations on all public of f icials . " ^^
The ultimate concern here, then, is the public quality of
the enduring and essential tensions between centers of power.
This is not to suggest limitation on the capacity of govern-
ment to function but only that it function properly, in a
public way. Nor is it to suppose that state government is
merely a hotbed for corruption whose main need is to be re-
strained; for, as Montesquieu noted in what is, on reflection,
an astonishing insight, even virtue stands in need of limita-
tion.^^ What is crucial is that, whatever pattern the alloca-
tion of functions takes, the checks and balances between the
centers of power should operate to expose--and in that way
make responsible — the operations of those centers of power.
Provisions on the Military
Quartering of Troops
Nearly every state constitution has a provision prohibiting
the quartering of troops in private dwellings. Article III of
the United States Constitution states that "no Soldier shall,
in time of peace be quartered in any house, without the con-
sent of the Owner, nor in time of war, but in a manner to be
prescribed by law." The Montana Constitution gives verbatim
expression to this principle in Article III, Section 22.
This statement reflects a problem that extended far beyond
the period of the American Revolution. The principle was ex-
pressed as a complaint in the English Petition of Right of
1628:
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PREAMBLE AND POLITICAL THEORY PROVISIONS
And whereas of late great companies of soldiers and
mariners have been dispersed into divers counties of
the realm, and the inhabitants against their wills
have been compelled to receive them into their houses,
and there to suffer them to sojourn, against the laws
and customs of this realm, and to the great grievance
and vexation of the people. . . .^1
The practice of quartering troops was especially marked in
the late 1760s in the colonies. In 1765, General Gage se-
cured the passage of a Quartering Act to aid him in the en-
forcement of the Stamp Act and the Revenue Act of 1764. That
is, the quartering of troops was an instrument used to compel
by force or threat of force obedience to laws which were, in
the words of John Adams, "taxation without representation."
The Quartering Act provided that if there was a shortage of
barrack units for the British Army, and all ale houses were
likewise filled, the governor and council of a colony could
authorize the quartering of the troops in private buildings.
A later Quartering Act (1774) was listed by the colonists as
one of the Intolerable Acts — one of the British abuses which
led to the Declaration of Independence. The practice it author-
ized was also cited as one of the major grievances in the De-
claration and Resolves of the First Continental Congress.
The principle of no quartering of troops is now well-estab-
lished and seems to be of little relevance today. However, the
enunciation of such a principle is a sign of the pervasive
colonial mistrust of the military and the colonists' desire
to prevent the potential abuses with which they knew standing
armies threatened society. ^^
Civilian Control of the Military
As noted above, one of the most pervasive of colonial under-
standings was the danger of the military to political liberty.
In addition to the commonplace provisions prohibiting the quar-
tering of troops, two provisions were incorporated in several
state constitutions of that period; examples can be found in
Part First, Articles 25 and 26 of the New Hampshire Constitu-
tion of 1784. Article 25 states that "standing armies are
dangerous to liberty, and ought not to be raised, or kept up,
without the consent of the legislature." Such a provision may
seem irrelevant to the contemporary period in which huge out-
lays for defense are considered necessary for nation-state
security. However, to the colonists — and to a number of con-
temporaries— the principle had an important justification.
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PREAMBLE AND POLITICAL THEORY PROVISIONS
The English Bill of Rights of 1689 had a provision which re-
quired the approval of Parliament before a standing army could
be maintained. This was an effort to wrest the control of the
military from the not exactly civilian hands of the king. The
standing army was employed for a number of decidedly political
purposes; for example, James II raised a large standing army,
staffed it with Catholic officers, and stationed it near
London as an unpleasant reminder to the Parliament. The colon-
ists too had good reason to consider the freedom from the
oppression of standing armies as a fundamental "right of
Englishmen." As stated in the Declaration of Independence,
one of the offenses necessitating separation from England was
that the king "has kept among us, in times of peace. Standing
Armies, without the Consent of our legislatures." This state-
ment was picked up by the Virginia Bill of Rights of 1776
and was followed in the other colonies. During the struggle
for the ratification of the U.S. Constitution, restrictions
upon the authority to maintain standing armies in times of
peace were proposed by five of the ratifying states. These
proposals were not adopted as the Constitution provided that
control of the raising of armies rested with Congress. In
this case, and in the previous case of Elbridge Gerry's Con-
vention proposal that a limit should be set on the number of
troops which could be maintained, it was felt that the Congress
could be trusted to prevent any abuses. ^-^
Whatever uneasy consensus existed during the colonial period
over the ability of Congress to effectively prevent abuses in
the size of standing armies no longer exists today. As one
commentator has written, a study of the detailed consideration
given by the Founding Fathers to the problems of standing
armies and civilian control of the military "reveals that the
military structure presently existing in the United States,
which depends primarily upon direct conscription of citizens
into the federal army, fails to meet the standards estab-
lished by the framers of the [U.S.] Constitution of 1787."°^
In recent years , the ethic of preparedness which grew out of
the American experiences in World War I and II and the exi-
gencies of the Cold War has come under some scrutiny. Partic-
ularly at issue is the amount of preparedness: the point at
which it might destroy the virtues it was instituted to pro-
tect; the pursuit of preparedness; the question of just how we
might extricate ourselves from its logic, and the legitimate
uses of such a capacity once it is assembled.
Article 26 of the New Hampshire Constitution states in common-
place wording the concept of civilian control of the military:
"In all cases, and at all times, the military ought to be
under strict subordination to, and governed by, the civil
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PREAMBLE AND POLITICAL THEORY PROVISIONS
power." Such language can also be found in the Montana Con-
stitution. Article III, Section 22 (in addition to the
prohibition on quartering troops) provides: "The military
shall always be in strict subordination to the civil power....'
Of course, the contemporary concern over these principles is
essentially directed toward the federal government and, more
specifically, the military appropriations approved for the
Department of Defense. That the principle of civilian control
of the military also has application at the state level can be
seen in a 1914 Montana court case. In re McDonald. 85 This
case resulted from several habeas corpus petitions by persons
alleging they were unlawfully detained. On September 1, 1914,
the governor proclaimed Silver Bow County to be in a state
of insurrection and placed it under martial law. In accord-
ance with the order, military forces of the state took posses-
sion of the county. The habeas corpus petitions were filed by
several who alleged they had been "arrested without warrant,
were being held without bail to be tried without a jury, be-
fore an alleged court or tribunal set up by the military
authorities, upon charges to the petitioners unknown. . . ."86
On the other hand, the respondents argued that preventive de-
tention was authorized under the Governor's Proclamation.
Justice Sanner, writing the court opinion, ruled that the gov-
ernor had no power to proclaim absolute martial law and that
any suspension of habeas corpus was a legislative function.
In addition, the court ruled that in an instance where some
form of martial law was declared, the duty of the military was
to reopen courts of the jurisdiction. The military authori-
ties themselves had closed several of the courts of the county
in this instance. 87 in ruling thus the state court indicated
that a continuing effort was necessary to determine the proper
place of the military power as subordinate to the civil au-
thority.
•94-
CHAPTER IV ;
NOTES
1. Montana, Constitutional Convention of 1884, "Proceedings "
unpublished, 26th day, February 8, 1884. Cited hereafter
as "1884 Proceedings".
2. Ibid.
3. Montana, Constitutional Convention of 1889, Proceedings
and Debates of the Constitutional Convention (Helena:
State Publishing Co., 1921), pp. 543-44. Cited hereafter
as 1889 Proceedings.
4. Ibid. , pp. 92-3.
5. Ibid. , p. 94.
6. Ibid. , p. 249.
7. William O. Douglas, The Right of the People (Garden City:
Doubleday and Co., 1958), p. 143.
8. 1889 Proceedings, p. 91.
9. Montana, Constitutional Convention 1971-1972, Consti-
tutional Convention Commission, Constitutional Provisions
Proposed by Constitution Revision Commission Subcommittees,
Montana Constitutional Convention Commission Occasional
Paper No. 7 (Helena, 1971) , p. 35.
10. Illinois, Constitutional Convention 1970, Committee on
Bill of Rights, Synopsis: Proposal No. 1 (Springfield,
1970) , pp. 9-11.
11. Alexander Meiklejohn, Political Freedom: The Constitu-
tional Powers of the People (New York: Oxford University
Press, 1965), pp. 163-4. Cited hereafter as Meiklejohn,
Political Freedom.
12. For examples of this reasoning, see the recently proposed
constitutions of New York and Maryland and the National
Municipal League, Model State Constitution 6th ed. rev.
1968 (New York, 1963, 1968) , pp. 27-28.
13. E. F. Roberts, "The Right to a Decent Environment:
Progress Along a Constitutional Avenu^" Law and
Environment, ed . Malcolm Baldwin (New York: Walker
and Co. , 1970) , p. 138.
-95-
NOTES
14. Although there is some variance, the state constitutions
generally express the doctrine of popular sovereignty,
the origin and purpose of government, consent of the
governed, the inalienable rights of men and the separa-
tion of powers. Most states spell out, in language
reminiscent of the Declaration of Independence, an
adjunct of the doctrine of popular sovereignty, the
right of revolution.
15. Gordon S. Wood, The Creation of the American Republic:
1776-1787 (Chapel Hill: University of North Carolina
Press, 1969), pp. 150-162. Cited hereafter as Wood,
The American Republic. See also discussion on Separa-
tion of Powers later in this report.
16. Hannah Arendt, Between Past and Future (New York: Viking
Press, 1961), p. 101. Cited hereafter as Arendt,
Between Past and Future.
17. Julian P. Boyd, The Declaration of Independence: The
Evolution of the Text (Princeton: Princeton University
Press, 1945) , front flap. For the general tendency of
the new political theorists' reassessment of old
verities, see for example Philip Green and Sanford
Levinson, eds . , Power and Community: Dissenting Essays
in Political Science (New York: Random House, 19 70).
18. Thomas Jefferson, Letter to Joseph Priestley, June 19,
1802. Cited from Saul Padover, ed. , Thomas Jefferson on
Democracy (New York: New American Library, 1939) , p. 153.
19. Leila Roberta Custard, Bills of Rights in American His-
tory (Los Angeles: University of Southern California
Press, 1942), p. 31. Cited hereafter as Custard,
Bills of Rights.
20. John A. Jameson, A Treatise on Constitutional Conventions,
p. 92. Cited in Ibid. , p. 9.
21. Wood, The American Republic, p. 53.
22. See, for example, Theophilus Parsons, Essay Upon Govern-
ment, cited from Ibid. , p. 59.
23. Quoted from Alexander Passerin d'Entreves, The Notion of
the State (Oxford: Clarendon Press, 1967) , p. 223.
Cited hereafter as Passerin d'Entreves, The State.
24. Ibid. , p. 228.
-96-
NOTES
25. Letter to A. Coray , October 31, 1823. Writings , Vol. XV,
p. 482. Cited from Edward Duitibauld, ed. , The Political
Writings of Thomas Jefferson (New York: Bobbs-Merrill Co.,
Inc. , 1955) , p. XXV. Cited hereafter as Dumbauld,
Writings of Jefferson.
26. Ibid. , p. xxvi.
27. Wood, The American Republic, p. 64. Alexander Passerin
d'Entreves, has d;.scussed the difficulty of reconciling
John Locke's statements that, on the one hand, govern-
ment is founded for the public good, and, on the other,
that it is instituted to protect certain "rights" and
"interests." See Passerin d'Entreves, The States, p. 224,
28. Wood, The American Republic, p. 65.
29. Alexis de Tocqueville, Democracy in America. Cited from
Mason Drukman, Community and Purpose in America (New
York: McGraw-Hill Book Co., 1971), p. v.
30. See, for example, the writings of Robert Dahl, Hannah
Arendt and Michael Parenti, among others.
31. The "elusive" nature of the public good is noted by one
commentator who has written that, just as there is "an
ever-recurring desire to establish once and for all a
substantial criterion for justice," so is there a desire
to "establish once and for all the notion of the common
good, a substantial criterion which should enable us to
say, in any given circiamstance : 'This, and this along,
is what ought to direct, and what justifies, the use of
power.'" See Passerin d'Entreves, The State, p. 222.
32. Ibid. , p. 228.
33. Wood, The American Republic, p. 55.
34. The political theory provisions, like nearly all other
provisions in the Montana Constitution, were borrowed
verbatim from the Colorado document and were adopted
without debate.
35. Passerin d'Entreves, The State, p. 228.
36. Martin Ostwald, Nomos and the Beginnings of the Athenian
Democracy (Oxford: Clarendon Press, 1969), p. 55.
37. Wood, The American Republic, pp. 329-30.
-97-
NOTES
38. Cited from Dumbauld, Writings of Jefferson, pp. 79,
80, 92.
39. Quoted from Wood, The American Republic, note 17 at
530-1.
40. Quoted from Ibid. , p. 530.
41. Ibid. , p. 600.
42. James P. Hart, "The Bill of Rights: Safeguard of
Individual Liberty," Texas Law Review 35 (1957): 919.
43. Stephen J. Perello Jr., "The Current Validity of the
Compact Theory , " Constitution Revision Study Documents
(Baltimore: State of Maryland, 1968) , p. 12.
44. Texas v. White, 7 Wall. 700 (1868) .
45. For a recent statement of this common colonial assumption,
see Howard Zinn, Disobedience and Democracy (New York:
Random House, 1968) , p. 124.
46. Vern Countryman, "Why a State Bill of Rights?" Washing-
ton Law Review 45 (1970) : 471.
47. Robert Rutland, The Birth of the Bill of Rights (Chapel
Hill: University of North Carolina Press, 1955), p. 13.
48. [John Dickinson] , "An Address to the Committee of Corres-
pondence in Barbardos . . . ," (Phila. , 1776), Ford, ed. ,
Writings of Dickinson, p. 262. Cited from Wood, The
American Republic, p. 293.
49. Ibid. , pp. 293-4.
50. Ibid. , p. 293.
51. Ibid. , pp. 295-6.
52. Ernest Cassirer, Rousseau, Kant, and Goethe (New York:
Harper & Row, 1967) , p. 11.
53. Staughton Lynd, Intellectual Origins of American Radi-
calism (New Yorkl Random House , 1968) , p. 45.
54. Meiklejohn, Political Freedom, p. 8. The notion of
government by consent is at least as old as the Funeral
Oration of Pericles. See also Passerin d'Entreves,
The State, p. 229.
-98-
NOTES
55. John C. Livingston and Robert G. Thompson, The Consent
of the Governed (New York: The MacMillan Co., 1966),
p. 11. Cited hereafter as Livingston, Consent.
56. Ibid.
57. Robert J. Pranger, The Eclipse of Citizenship (New York:
Holt, Rinehart & Wilson, Inc., 1968), pp. 43-45. See
also Howard B. White, "The Processed Voter and the New
Political Sciencs," Social Research 28 (Summer 1961):
127. Cited hereafter as White, "Processed Voter." For a
series of opposing positions see "The 'New Political
Science' Re-examined: A Symposium," Social Research 29
(Summer 1962): 127-156.
58. Cited from Wood, The American Republic, note 38, p. 181.
59. See, e.g., Arendt , On Revolution (New York: Viking Press,
1965) , pp. 221-3.
60. An example of the writing devoted to a serious conception
of active consent is Michael Walzer, Obligations (New
York: Simon and Schuster, 1970).
61. Joseph Tussman, Obligation and the Body Politic (London:
Oxford University Press, 1960), pp. 106-8.
62. Ibid. , p. 108.
63. Kurt Riezler, "Political Decisions in Modern Society,"
Ethics 64 (Jan. 1954): 8. Cited from White, "Processed
Voter," p. 128.
64. Livingston, Consent, p. 26.
65. Meiklejohn, Political Freedom, p. 11.
66. 1889 Proceedings, pp. 98-9.
67. John A. Fairlie, "The Separation of Power," Michigan Law
Review 21 (1922-3) : 397. Cited hereafter as Fairlie,
"Separation of Power."
68. Wood, The American Republic, p. 150.
69. Passerin d'Entreves, The State, p. 91.
70. For this and other insights on the philosophical pre-
occupations of the personalities of the American Revolu-
tion, see in general Arendt, On Revolution.
-99-
NOTES
71. Arendt, On Revolution, p. 149.
72. Fairlie, "Separation of Power," p. 434.
73. Judge Cooley, Constitutional Limitations, 5th ed. (Boston:
Little, Brown and Co., 1883), pp. 105-6.
74. Fairlie, "Separation of Power," p. 433. See also Malcolm
Sharp, "The Classical American Doctrine of Separation of
Powers," University of Chicago Law Review 2 (1934-5): 385.
Cited hereafter as Sharp, "Separation of Powers."
75. Sharp, "Separation of Powers," p. 386.
76. Ibid. , p. 385.
77. Charles Reich, Bureaucracy and the Forests (Santa Barbara:
Fund for the Republic, 1961) .
78. See Mitchell v. Holmes, 128 Mont. 275, 274 P. 611 (1954)
wherein the Court ruled that the creation of the Legis-
lative Council violated the principle of separation of
powers. The Court reversed itself in State v. Aronson,
132 Mont. 120, 314 P. 2d. 849 (1957).
79. Fairlie, "Separation of Power," p. 434.
80. Montesquieu, The Spirit of the Laws, Chapter XI, 4 and
6. Cited from Arendt, On Revolution, p. 150.
81. Petition of Right, June 7, 1628, Section VI. Cited from
Richard L. Perry, Sources of Our Liberties (Rahway:
Quinn and Boden Co., Inc., 1959), p. 70.
82. Ibid. , p. 72.
83. Ibid. , pp. 230-1.
84. Leon Friedman, "Conscription and the Constitution: The
Original Understanding," Michigan Law Review 67 (1968-69):
1493.
85. 49 Mont. 454, 143 P. 947 (1914).
86. Ibid. , p. 458.
87. Ibid. , p. 476.
-100-
CHAPTER V
RIGHTS OF EXPRESSION AND SUBSTANCE
This chapter discusses several specific issue-areas closely
associated with free expression: the right of association,
the problem of the loyalty oath, and, in response to
increasing concern over the openness of government, the right
to know. An additional substantive right — the right to bear
arms--also is explored. The traditional First Amendment
freedoms are discussed in another report in this series;
that report emphasizes the divergent character of those
rights from the essentially negative liberties common to
bills of rights.
ASSOCIATION
In his classic study of the American political climate
Alexis de Tocqueville stated:
In no country in the world has the principle of
association been more successfully used or applied
to a greater multitude of objects, than in America.
Besides the permanent associations, which are
established by law, under the names of townships,
cities, and counties, a vast number of others are
formed and maintained by the agency of private
individuals . ■'■
Arguing that the association — the "natural privilege of man"—
has as its function in America to "argue and petition,"
"attacking those [laws] which are in force, and . . . drawing
up beforehand those which ought to be enacted," Tocqueville
continued:
There are no countries in which association are
more needed, to prevent the despotism of faction
or the arbitrary power of a prince, than those which
are democratically constituted .... The right of
association therefore appears to me almost as
inalienable as the right of personal liberty. No
legislator can attack it without impairing the
foundations of society .... at the present time,
the liberty of associations has become a necessary
guaranty against the tyranny of the majority. 2
The federal Bill of Rights is silent on the rights of
associations. As a Hawaii sudy noted, it may be that the
Founding Fathers had so great a fear of the factional
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tendencies of associations that the omission of their mention
was more than mere oversight; this is especially the case in
the Federalist Papers No. 10.3 it is also true, however, that
the weight of this paper in which James Madison castigated
factions is often overestimated: "It is sometimes as if the
title of the work is Number 10, and the sole author was James
Madison.'"* Beyond this, the fact that so little time was
spent drafting the Bill of Rights adds credence to the
contention that the exact framer intent on the question of
associations cannot be known. ^ In any case, many commentators
have noted and applauded the tendency of Americans to "join"
for whatever frivolous, innocuous or crucial purposes. As
stated by historian Henry Steele Commager:
No one familiar with American history can doubt that
the private voluntary association is the most basic
of American institutions, for it is the institution
that underlies almost all others .... Most of our
reforms . . . have been carried through by just such
organizations — many of them regarded as disreputable
or subversive by their respectable contemporaries.
Call the list of those reforms that have given the
United States its most distinctive character over
the past century and a half and you will discover
that almost all of them had their inception in, and
were carried to completion by, associations of
individuals . "
The problem of the unpopularity of an association deserves
digression. Nearly every type of association at some time
has been regarded as subversive. The dissenting churches
of the seventeenth and eighteenth centuries suffered social
and legal indignities at the hands of established institutions.^
The history of the labor unions of the eighteenth and nineteenth
centuries is written with an undue emphasis on the violent
aspects of the movement that is only recently being placed in
perspective. In fact, the crux of the association problem
arises when an unpopular or allegedly subversive association
is acted against by the majority or the agencies of the
government. This can be readily seen in the cases affecting
the right decided by the Supreme Court.
In spite of the constitutional silence on the right of
association, it is a right protected by the First and
Fourteenth amendments to the United States Const '.tition. ^
The Supreme Court first announced the constitutional right
of association in a case involving the National Association
for the Advancement of Colored People. The association, active
in the early civil rights movement in the South, was harassed
by a requirement that it turn over its membership lists to
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governnental officials. The court, seeing the obvious abuses of
such a practice, held in NAACP v. Alambama^ that the "inviolability
of privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particu-
larly where a group espouses dissident beliefs." In addition, the
court announced the applicability of the right of association to
the states, saying:
It is beyond debate that freedom to engage in associ-
ation for the advancement of beliefs and ideas is
an inseparable aspect of the "liberty" assured by the
Due Process Clause of the Fourteenth Amendment ....
State action which may have the effect of curtailing
the freedom to associate is subject to the closest
in
scrutiny . . . .•*•"
The court also stated the freedom to associate was broad enough
to incorporate all human advocacies, and that it was unimportant
whether the beliefs to be advanced were of a political, economic,
religious or cultural character.
The view that the right of association is protected by the First
and Fourteenth amendments — which asserts that the right is
cognate with the First Amendment guarantees of speech, press,
assembly and petition--may miss the point somewhat. It has
been noted by at least one commentator that the right of
association is not a mere synonym for these other First Amendment
guarantees; rather, it is a separate protection with its own
implications . ^■'■
That is not to say, however, that the sphere of First Amendment
protections is not important to the right of association. In
fact, the right of association enjoys the preferred status
accorded the other First TUnendment freedoms. ^2
In sum, it is certain tl at "the right of association is
central to any serious conception of democracy . "■'■^ Without
this right, the individual could not function politically in
the contemporary big states. It also has been written that
"there is no question of substitution by mass communications"
for the rights of association: "Neither can the role of
private government be performed by newspapers and television"
of modern times. ^'^ Modern communications notwithstanding,
most people still find some of their identity in some form of
group activity. "It follows that government has an obligation
to protect the rights of association from invasion . . . ."^^
That a state may have some difficulty defining the precise
limits of a substantive right of association cannot be
denied. However, the state constitution provides an opportunity
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for such delineation. Incorporation of the substantive right of
unrestrained freedom of association into the substantive rights
provisions is an alternative. The Puerto Rico Constitution
contains an example of wording to protect the right of associ-
ation in Article II, Section 6: "Persons may join with each
other and organize freely for any lawful purpose, except in
military or quasi-military organizations." A Hawaii report
noted that protection of the Supreme Court-enunciated right of
association could be added to First Amendment- type wording as
follows: "No law shall be enacted . . . abridging the freedom
of speech, of association, or of the press . . . ,"16 Alan
Westin, noted expert on the right of privacy, has proposed a
similar provision: "The right to privacy of persons, communi-
cation, and association shall not be abridged. "1'
THE LOYALTY OATH
The problem of the loyalty oath — that which "has made men's
fortunes and hurt their lives, brought fame and shame, comfort
and resentment" lS__to secure certain benefits, privileges and
positions is not new in Montana. In fact, the problem arose
when the first territorial legislature convened in Bannack ,
December 10, 1864.1^ The first step in organization required
by Congress was for all members of both houses to take the
"iron-clad oath" of allegiance to the Union. Although the
territorial council (senate) was predominately Democratic, the
oath was taken with "little delay or grumbling." This was not
the case in the house, however; the Madison County delegation
was quite bitter at the prospect. The governor at first attempted
gentle persuasion, which had no effect. Then he dropped all
hints and announced that if there were no oath, there would be
no pay. According to the Montana Post of December 24:
That touched the Madison County delegation in a tender
place, and with such wry faces as a patient makes who
takes distasteful purgatives, and such contortions as
one would make after over-eating turkey buzzards, they
swallowed the "iron-clad. " ^^
This was not the end of the matter, however, as John H. Rogers
of Deer Lodge still refused to subscribe the oath. He asserted
that, as he had fought as a lieutenant in Price's army, he
could not honestly say he had not taken up arms against the
Unites States. Accordingly, he offered a substitute oath
which the house accepted; the governor refused to accept it,
however. In addition, the governor refused to address the
assembly until that assembly was "organized in pursuance of
law." That is, he refused to deliver a state of the state
message until Rogers subscribed the oath. 21
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The two houses were angered by the governor's rebuff and passed
a resolution addressed to the "school marm." According to
one source, the legislators "threatened all sorts of things.
They would tell the voters; they would tell Congress; they
would tell Abraham Lincoln; but the governor 'hummed his tune
and cracked his jokes.'" The upshot of the matter was that
John Rogers resigned from the assembly. ^2
The 1889 Constitution, perhaps applying a lesson learned from
the territorial experience, provides in Article XI, Section 9
that "no religious or partisan test or qualification shall ever
be required of any person as a condition of admission into any
public educational institution of the state, either as teacher
or student . . . ." Notwithstanding this provision, the Revised
Codes of Montana, 1947, contain an oath requirement for teachers
nearly identical to the one declared unconstitutional in a 1964
U.S. Supreme Court case, Baggett v. Bullitt (see below). 23
Sections 75-4706 and 75-8805 require the following oath of
every teacher in the public school and university system:
I solemnly swear (or affirm) that I will support the
constitution of the United States of America, the
constitution of the state of Montana and the laws of
the United States and the state of Montana, and will,
by precept and example, promote respect for the flag
and the institutions of the United States and the
state of Montana, reverence for law and order and
undivided allegiance to the government of the United
States of America.
A fight developed in the 1971 Legislature when it was unsuc-
cessfully proposed that this oath for public school and
university teachers should have to be subscribed prior to the
signing of the contract. 24 The opposition to making the oath
a condition precedent to the signing of contract was based on
recent U.S. Supreme CoMJt decisions rendering similar loyalty
oaths unconstitutional. [As this report went to print a Montana
federal district court declared the Montana teachers loyalty
oath unconstitutional (December 30, 1971).]
The Montana Constitution also contains in Article XIX, Section
1 a general oath for all legislative assembly members and state
officers. This oath, probably constitutional, amounts to
swearing (or affirming) to support, protect and defend the
United States Constitution and that of Montana, to discharge
official duties with fidelity; in addition, one forswears any
financial irregularities to obtain his position or perform any
act. The section concludes: "And no other oath, declaration
or test shall be required as a qualification for any office
or trust. "
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Currently, there is no doubt as to the unconstitutionality of
any religious test or oath as a precondition to holding public
office. In 1961, the U.S. Supreme Court struck down such an
oath, saying that it "unconstitutionally invades the appellant's
freedom of belief and religion . . . . ^ ^ The other type of
oath, the central concern of this essay, is the political oath
generally associated with some form of government loyalty-
security program.
Article VI of the Unites States Constitution requires that
members of the three branches of the federal government affirm
their support of the federal Constitution. This practice is
fairly common, with more than forty state constitutions requiring
some kind of oath in exchange for certain benefits. Coupling
this with the fact that states which have revised their consti-
tutions recently have generally provided for the administration
of some form of political oath, it can be seen that the oath
is fairly popular, as well as common.
The popularity of the practice notwithstanding, there is
considerable debate over the use and c±)use of different types
of loyalty oaths. Insofar as the matter has been reviewed by
the Supreme Court, the tendency has been to analyze the wording
of the oath to see if it meets judicially construed constitutional
standards. This can be seen in the early case of the Washington
state oath, which reads as follows:
I solemnly swear (or affirm) that I will support
the Constitution and laws of the United States of
America and the State of Washington, and will, by
precept and example promote respect for the flag
and the institutions of the United States and the
State of Washington, reverence for law and order
and undivided allegiance to the government of the
Unites States.
One commentator has written that "the oath seems harmless
enough." He goes on to say that many very honest citizens
refused to take the oath, being wary of hidden meanings in
the language and possible application of such an affirmation. 26
In 19 64, the United States Supreme Court ruled that such an
oath--nearly identical to Montana's statutory oath--was
unconstitutional because of its vagueness. ^^ The court, in
ruling the oath unconstitutional, posed several questions
which may be asked of nearly every kind of loyalty oath.
Which of society's institutions must one respect? What kind
of respect is to be required? What sorts of criticisms are
permitted? How must one support the constitution?
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In a later case, the Supreme Court moved toward the abolition
of all loyalty oaths. A number of instructors at the University
of Buffalo had refused to take a New York loyalty oath. Just
before the challenge to this oath was to go to trial, a law
was passed rescinding the requirement that the oath be subscribed.
In its place, prospective teachers were to be notified of certain
sections of New York's Education Law, one of which, for example,
forbade them from uttering "seditious words." The Supreme Court
struck down this law, noting the stifling effect of such an
effort to curtail free speech. This, the court said, was
especially the case when the strictures were applied to the
academic realm where freedom of thought and speech were the
prerequisites of any viable concept of education. 28
One writer has said that "most loyalty oaths now are unconsti-
tutional, either because their words are too vague or because
they are too broad . . . ."^9 if any form of loyalty oath is
still judicially acceptable, it probably would have to be of the
kind which announces only support of the Constitution and the
laws of the entity administering the oath. Examples of this
type of oath can be found in the 1968 Model State Constitution.
Section 1.0 7 reads:
No oath, declaration or political test shall be
required for any public office or employment other
than the following oath affirmation: "I do solemnly
swear [or affirm] that I will support and defend the
Constitution of the United States and the constitution
of the state of and that I will faithfully
discharge the duties of the office of to the
best of my ability. "30
In any case, interesting discussions of the underlying rationale
of political loyalty oaths have taken place in the realm of
political philosophy. Howard B. White has written that, "as
there is a quality of "".cyalty in political inquiry, there is
also a quality of non-loyalty . " -^-^
White's point is perhaps one of the most compelling inquiries
into the questions of loyalty and the administration of loyalty
oaths. By non-loyalty, he does not mean disloyalty; the two,
he insists, must be distinguished. White notes that all
inquiry begins with a certain detachment from the prevailing
political institutions. Although all free societies require
gratitude, as do even some unfree societies, inquiry, which
does not destroy or deny such gratitude, at least constitutes
a certain abstention from it. That is, a detachment from the
patriot's gratitude--one who is grateful to those who establish
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RIGHTS OF EXPRESSION AND SUBSTANCE
and preserve the political order — is essential to the free play
of the critical faculty of wonder, the prerequisite of critical
inquiry. ^^
White points to the various sources of a "loyalty" doctrine in
American political thought. It can be found in the reference
to "light and transient causes" in the Declaration of Indepen-
dence; in the Forty-ninth Federalist where the author admonishes
that frequent appeals to the people would imply a defect in the
Constitution; in the famous case of Marbury v. Madison and in
the political doctrines of Abraham Lincoln. Of this tradition.
White says that "all serious political writing regards loyalty
as a political good. "33
He also points to the sources of the concept of "non-loyalty" —
again, a concept that must be distinguished from disloyalty.
This sentiment can be found in the whole tone and temper of the
Declaration of Independence; in the reservations of Federalist
Alexander Haimilton about the absolute goodness of the Consti-
tution; in the desanctif ication of the Constitution which
Jefferson admonished, and in the writings of Calhoun, Beard,
Dewey and Roger Williams, among others. 34
White's point on the conflicting tendencies of these two
principles, both firmly rooted in the tradition of American
political discourse, seems to be that the concept of loyalty,
as expressed in the typical verbal loyalty oath, has been bent
out of recognition in a way that endangers the function of
inquiry as detachment from conformity. Not only does he cite
the traditional arguments against the loyalty oath, but he also
warns of the tendency of loyalty oath campaigns to "enlist
converts against conversion. " 35
Particularly where such an oath can be suspected as an attempt
to curb dissent, its claim to be a verbal affirmation of the
democratic tradition rings hollow. If the effect of such an
oath is to slow willingness to fervently dissent, nowhere could
it be more damaging than precisely at the point where it is most
frequently required: from those who are publicly chosen to
critically inquire into and examine the nature of the society--
the public officials.
Typical of the arguments offered in support of loyalty oath pro-
grams is the contention that the state has a compelling interest
in attempting to isolate and eliminate those whose beliefs are
irregular or "subversive." Rebuttal to this point centers around
the indef initeness and historical abuses of the concept "subver-
sive" and, more important, contends that in a system of free
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expression, denying a person certain benefits because of his
beliefs, speech, or associations fundamentally does not follow. 36
Another argument offered in support of political oaths is that
persons who do not subscribe to the basic beliefs upon which
the government of the United States is founded are not deserving
of certain privileges. It can be seen that this argument is
problematic, given the depth and sometimes even contradictory
nature of the tradition out of which conventional beliefs have
arisen. In fact, it is the variegated nature of this tradition — and
the conflicting nature of the beliefs which emerge from it — which
add depth to what otherwise would be a stale source of inspiration
and political inquiry.
Other arguments center around the notion that a combination of
various factors--the cold war, fear and chauvinism — has created
a peculiar kind of support for political loyalty oath programs.
This argument goes on to contend that the elimination of oath
programs could result in the institution of some much harsher
program of restrictions based on loyalty considerations. Against
these contentions it is argued that none of these factors--the
cold war, fear, and chauvinism — offers a justified basis for
strictures in an area so potentially sensitive to the field of
civil liberties and freedom of belief and expression. This
is especially the case when it is noted that the history of
civil liberties is replete with examples of minority agitation
that furthered civil liberties guarantees now assumed as
commonplace. In addition, if the current loyalty oath program
is on the borderline of serious constitutional difficulties,
certainly any harsher program would cross that line and be
deemed unconstitutional.
Perhaps the most telling question asked of the proponent of
the loyalty oath is "what is the application of the oath?" How
is a violation of the oath clearly decided? Having determined
this, what are the sanctions against one who allegedly committed
the violation? An exa .1 le of the problems encountered--apart
from such occurrences as resignation of Assemblyman Rogers in
the first Montana territorial legislature--can be seen in the
recent case where the Georgia legislature refused to seat a
duly-elected representative. Julian Bond was a member and
officer of a civil rights organization which issued a statement
criticizing United States government policy in Vietnam and
the Selective Service laws; Bond publicly endorsed the statement.
Even before the Georgia house convened, its members challenged
Bond's right to be seated. A special committee of the legis-
lature, appointed to exercise the traditional legislative
function of judging the qualifications of its members, concluded
that Bond did not support the constitutions of the United States
or of the state of Georgia, that he was giving comfort to the
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enemies of the Unites States, that his statements violated the
Selective Service Act, that his statements would bring disrespect
and discredit to the Georgia house of representatives, and that,
accordingly, he ought not to be seated. Bond sought injunctive
relief and a judgment that the house action was improper and
that it violated his right to free expression under the First
Amendment. Two members of the three-judge federal district
concluded that the action of the Georgia house was proper;
however, a unanimous U.S. Supreme Court reversed the decision.
In doing so, the court held that Bond's freedom of expression
was indeed violated. 37
Although this case did not directly involve a loyalty oath per
se, it did involve a political judgment as to what certain
persons believed to be loyal. The difficulties encountered with
such a judgment and any attendant sanctions are clear: one risks
violating a person's right to speak strongly on controversial
matters. In this case, a legislative committee violated the
constitutional rights of a duly-elected public official to
speak strongly on critical issues of society.
In this area, the debate can be protracted and difficult. The
only counsel in dealing with questions of this sort, amenable
as they are to blind appeals of all sorts, is a careful guard
that the prejudices which so often block critical consideration
of a complicated question do not write the final decision.
Returning to White by way of conclusion:
A political inquiry may end in absolute skepticism,
in despair, in complacent acceptance of what we have;
but it can never begin there. It must begin in wonder.
Wonder as to what we have is in some critical respects
different from what we have. He would be a poor
Fourth of July orator who wondered at democracy, but
he would be a poor political philosopher who began
his inauiry by praising democracy. 38
It is suspected that the paramount issue in the area of
loyalty oaths, as popular and widespread as they still are,
is: Do demands of loyalty oaths tend to supplant non-loyalty,
the "healthy antidote to the kind of loyalty that can be
identified with conformity? " 39 or, phrased differently, is the
loyalty oath an effort to curb critical political inquiry?
Finally, in democracies where the public life always operates
with a healthy kind of uneasiness, does the effort of a
loyalty oath to verbally bolster the confidence of those who
do not value that uneasiness serve a justifiable end? Is the
administration of such oaths a justifiable effort to ferret
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out "subversives," or is it the act of "joining with one hunter
in pursuit of another, or arguing over which definition of
liberty is the v7olf 's and which is the sheep's, forgetting that
there is such a thing as a shepherd" 7^0
RIGHT TO KNOW
A long-standing principle of democratic theory has been that
the activities of government be public at all levels. This
openness, it is held, provides the necessary basis for
principled scrutiny of and objection to government activity. '^1
Such concern was reflected in the 1641 Massachusetts Body of
Liberties. Section 39 of that document provides that
every Inhabitant of the Country shall have free
libertie to search and veewe any Rooles, Records,
or Regesters of any Court or office except the
Councell, And to have a transcript or exemplifi-
cation thereof written examined, and signed by the
hand of the officer or the office paying the
appointed fees therefore.
Commenting on this principle more than a hundred years later,
Patrick Henry said that "the liberties of a people never were,
nor ever will be, secure when the transactions of their rulers
may be concealed from them . . . ."42
James Madison spoke to the same point in an 1822 letter:
A popular Government without popular information,
or the means of acquiring it, is but a Prologue
to a Farce or a tragedy; or, perhaps both. Knowl-
edge will forever govern ignorance: And the people
who mean to be their own Governors, must arm them-
selves with the power which knowledge gives. ^-^
Thomas Jefferson also wrote on this principle, saying "the
basis of our governments being the opinion of the people,
the very first object should be to keep that right ....
The way to prevent (errors of] the people is to give them
full information of their affairs . .
>44
That such a concern is still at issue is indicateu by the
recent test case activity between the Lee Newspaper and the
Montana State Industrial Accident Board over the disclosure
of certain files. The problem is also a matter of concern
at the federal level. As one commentator has written:
RIGHTS OF EXPRESSION AND SUBSTANCE
Lest it be forgotten that this concept of publication
of government action remains less than fully executed,
"a general philosophy of full agency disclosure" by
the federal government required the adoption of a
public "right-to-know" law in 19 66. ^^ 5
This statement is in reference to the 1966 federal Freedom of
Information Act. What follows is a brief examination of that
act, a discussion of state statutes on the matter and a mention
of possible activity in this area at the level of the state
constitution.
The federal Freedom of Information Act of 19 66 (FOI) was a
result of increasing awareness in Congress that the federal
Administrative Procedures Act was being used to support with-
holding of information.^^ Strong pressure from the press and
concerned individuals led to the FOI amendment to the Adminis-
trative Procedures Act in an effort to mandate full agency
disclosure subject to clearly defined exemptions. A Senate
report states that the FOI Act was designed as a disclosure
statute, not as a withholding statute. 4/
The terms of the act specify that identifiable agency records
must be made available to any person; this general requirement
is siabject to nine exemptions. These include: national security
matters, internal personnel rules and practices, any records
specifically exempted by other statute, trade secrets and
confidential commercial or financial information, inter-agency
or intra-agency memos which would not be available to a private
party in litigation with the agency, personal or medical files
whose disclosure would unduly invade privacy, investigatory
files compiled for law enforcement purposes, condition reports
by agencies responsible for supervision of financial institutions,
and geological and geophysical information and data concerning
wells .
In any complaint action under the Act, the agency carries the
burden of proof to sustain its decision to withhold information;
officers responsible for improper withholding and noncompliance
can be punished for contempt. In addition, there are three
substantial changes which affect the availability of information:
(1) a person need not be "properly or directly concerned" to
secure information; (2) an effort is made to reduce vagueness
through the delineation of standards, and (3) the jurisdiction
of district courts is expanded to permit them to better
scrutinize the agency's discretion. Upon its passage then-
President Johnson praised the Act, saying: "I sign this measure
with a deep sense of pride that the United States is an open
society in which the people's right to know is cherished and
guarded. "^^
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The above notwithstanding, there is considerable dissatisfaction
with the operation of the Act. One commentator has written:
"Though its aims were admirable, the 1966 Act has as yet failed
to achieve what it was designed to do."'^^ Another has cited
Sam Archibald, the former counsel to the subcommittee that
drafted the law: "Some agencies are using the law as a new
excuse to hide more facts of Government. Other agencies are
twisting the law to fit the secrecy system they have been
following for decades. "^^
Prior to its amendment, the Administrative Procedure Act did
not provide a judicial remedy for wrongfully withholding
information and it imposed major restrictions on free disclo-
sure. For example, under the old provisions an administrator
could withhold information from a person who was not "properly
and directly concerned" if such information required "secrecy
in the public interest" or if it could be "held confidential
for good cause found." This high level of agency discretion
seems not to have been undermined under the new FOI Act,
although that was the thrust of the eunendm.ent.
One commentator traces this latitude in agency discretion not
so much to the statute itself but to the "restrictive House
[Committee on Governmental Operations] analysis" of the measure.
The House interpretation of the measure was accepted by the
attorney general in a memorandum prepared for the federal
departments and agencies. ^^ Additional criticisms of the Act
center around its vagueness (even though the Act aimed at
setting explicit standards) , overly restrictive court interpre-
tation of the "any person" clause and extensions of several
governmental withholding privileges unknown to the Act.
The point is not so much the strengths or weaknesses of the
Federal FOI Act as the unyielding difficulties in reorienting
government to a disclosure-oriented posture rather than one that
is withholding-oriented.
Nearly all the states have some statutory provisions touching
on the area of right to know. According to fairly recent
information, eight states have open meeting laws, six states
have open records laws and thirty-two states have both
open meeting and open records laws. These figures do not
indicate the extent or effect of such statutes but only serve
to indicate the pervasiveness of the state efforts in this
area. 52
Montana is one of the states that has both types of statues.
Chapter 34 of Title 82 of the Revised Codes of Montana, 1947,
contains provisions requiring open meetings of public agencies
with certain exceptions:
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82-3401. Legislative intent-liberal construction.
The legislature finds and declares that public boards,
commissions, councils, and other public agencies in
this state exist to aid in the conduct of the peoples'
business. It is the intent of this act that actions
and deliberations of all public agencies shall be
conducted openly. The people of the state do not
wish to abdicate their sovereignty to the agencies
which serve them. Toward these ends, the provisions
of the act shall be liberally construed.
82-3402. Meetings of public agencies to be open to
public--exceptions '. All meetings of public or govern-
mental bodies, boards, bureaus, commissions or agencies
of the state or any political subdivision of the state,
or organization or agencies supported in whole or in
part by public funds, or expending public funds, at
which any action is taken by such public governmental
body, board, bureau, commission or agency of the state
or any political subdivision of the state, or
organization or agencies supported in whole or in
part by public funds, or expending public funds, at
which any action is taken by such public governmental
body, board, bureau, commission or agency of the state
or any political subdivision of the state shall be
open to the public, except as otherwise specifically
provided by law and except any meeting involving or
affecting;
(1) National or state security.
(2) The disciplining of any public officer or
employee, or any hearing on, or of, a complaint against
a public officer or employee, unless the public officer
or employee requests an open meeting.
(3) The employment, appointment, promotion,
dismissal, demotion or resignation of any public
officer or employee, unless the public officer or
employee requests an open meeting.
(4) The purchasing of public property, the
investing of public funds or other matters involving
competition or bargaining which, if made public may
adversely affect the public security or financial
interest of the state or any political subdivision
or agency of the state.
(5) The revocation of a license of any person
licensed under the laws of the state or any political
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RIGHTS OF EXPRESSION AND SUBSTANCE
subdivision of the state, unless the person licensed
requests an open meeting.
(6) Law enforcement, crime prevention, probation
or parole.
82-3403. Minutes of meetings — public inspection.
Appropriate minutes ot aii meetings deciarea to be
open, shall be kept and shall be available for
inspection by the public.
Of special note is the legislative intent that the .provisions
shall be liberally construed to provide maximum openness in "••'
the conduct of all public agencies; in addition, rfteetings of
public agencies are required to be open. It also should be
noted that the Montana Constitution contains provisions
expressly dealing with the openness of legislative deliberations.
Article V, Section 13 provides: "The sessions of each house
and of the committees of the whole shall be open, unless the
business is such as requires secrecy." This provision gives
the legislature considerable discretion in deciding what
business requires secrecy. This kind of provision is found
in the constitutions of more than thirty states. It can be
contrasted with the provisions of two states which require the
legislature to sit with open doors without exception. Article
IV, Section 12 of the New Mexico Constitution provides; "All
sessions of each house shall be public." Article III, Section
12 of the Idaho Constitution provides: "The busir.ess of each
house, and of the committee of the whole shall be conducted
openly and not in secret session." Neither of these provisions
expressly deals with the question of whether votes, committee
meetings and committee votes ought to be public information.
Montana's statutory provisions on public records are found in
Title 93, Chapter 1001 of Revised Codes of Montana, 1947.
Sections 2 and 3 of this chapter reflect an 189 5 effort to
distinguish between "public" and "private" writings. "Public"
writings are defined as
the written acts or records of the acts of the sovereign
authority, of official bodies and tribunals, and of
public officers, legislative, judicial, and executive,
whether of this state, of the United States, of a
sister state, or of a foreign country [and any] . . .
public records, kept in this state, of private writings.
All other writings are private. Chapter 4 provides that "every
citizen has the right to inspect and take a copy of any public
writings of this state, except as otherwise provided by law
[emphasis added]." In another 189 5 provision. Section 5,
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RIGHTS OF EXPRESSION AND SUBSTANCE
public officers are required to give copies of public writings
to any citizen upon payment of the legal fees. Such copies
can be admitted as evidence in the same instances in which the
original could be admitted.
Even with the above-cited state provisions, many thorny "right
to know" questions — relating to agency discretion and judicial
construction of exemptions--remain unanswered. There is little
opportunity at the constitutional level for the resolution of
these detailed problems of agency discretion and executive and
judicial construction of explicit disclosure exemptions. They
are properly statutory matters which do not lend themselves to
constitutional treatment. This is indicated by the low level
of constitutional activity in the area of the right to know.
However, there are possibilities for broad statements of the
public's right to know at the constitutional level. The
proposed New York Constitution gives one example of the possible
wording of a public record provision. Article I, Section II
provided, in part:
Records of the state, local government, public
authorities and other public corporations, and all
departments, agencies and instrumentalities thereof,
including those created pursuant to an agreement or
compact with another state or a foreign power, shall
be public records open to inspection to the extent
and in the manner provided by law.
In terms of wording, this provision does not set any govern-
mental policy, nor does it direct the legislature to press
for open records. The provision only provides that records
are public insofar as the statutory law says they are public.
Other constitutional possibilities which suggest themselves
include: a broad statement of the right of any person to
view state and local government operations and records coupled
with a mandate to the legislature to explicitly define
exemptions in a manner consistent with such a right; a specific
provision on the openness of legislative and executive pro-
ceedings, and a state policy commitment to public access and
scrutiny of all governmental operations.
The Swedish Constitution contains a provision which is often
cited as a model public access guarantee:
To further the free interchange of opinion and general
enlightenment, every Swedish citizen shall have free
access to official documents .... This right shall be
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RIGHTS OF EXPRESSION AND SUBSTANCE
subject only to such restrictions as are required
out of consideration for the security of the realm
and its relations with foreign powers, or in
connection with official activities for inspection,
control or other supervision, or for the preservation
and prosecution of crime, or to protect the legitimate
economic interests of the State, communities, and
individuals, or out of consideration for the mainte-
nance of privacy, security of the person, decency
and morality. -^
Such a provision, it should be noted, is similar to the federal
Freedom of Information Act except in one respect: it does not
explicitly guarantee the citizen a judicial remedy for violation
of the provision.
By way of conclusion, one contemporary political philosopher,
Hannah Arendt, writing about broader questions than the right
to know, has said:
Opinions are formed in the process of open discussion
and public debate, and where no opportunity for the
forming of opinions exists, there may be moods — moods
of the masses and moods of individuals, the latter no
less fickle than the former — but no opinion [emphasis
added] .54
RIGHT TO BEAR ARMS
When VJalter A. Burleigh of Miles City rose on the floor of
Montana's 1889 Convention and drew the attention of the delegates
to the danger of "carrying .. .deadly weapons in towns or cities,
whether concealed or not" and asked for some discussion on the
matter, he got none.^^ Today when guns are rarely strapped on
before going to town, the "deadly weapon" is a hot issue and
to ask Burleigh's question is to invite sustained and heated
controversy. No doubt this will be the case at the convention,
the recent senatorial election being one indicator.
In the English Bill of Rights of 1689, specific provision was
made for the right of Protestants to bear arms. They had been
denied this right under the Stuart policy of maintaining strictest
control of the army and removing the influence of Puritans who
had dominated it for some time. The phraseology of that day
indicaten the contemporary dilemma. Section 6 of the Grievances
of thp 1689 Bill holds that King James the Second violated
tho " lav;s and liliortios of this kingdom ... By causing good
sul)jocts boi nq l'roL(>s t.ints , to lu' disarmed, at the name time
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RIGHTS OF EXPRESSION AND SUBSTANCE
when Papists were both armed and employed, contrary to law."
The attempt to change this situation is expressed in Section
7 of the Rights of the People: "That the subjects which are
Protestants, may have arms for their defense suitable to their
conditions, and as allowed by law [emphasis added]. "56 it can
be seen that even m this early wording of the right to bear
arms, room was left for legislative action to regulate the
right.
The recent controversy, sustained by the increasing number of
crimes involving the use of deadly weapons and a heightened
frequency of political assassinations, centers around the
advisability and scope of such regulation. Concern is generally
focused on the terms of constitutional provisions and the
meaning of the phrase "the right to bear arms."
The Montana provision on the right is found in Article III,
Section 13:
The right of any person to keep and bear arms in
defense of his own home, person, and property, or
in aid of the civil power when thereto legally
sximmoned, shall not be called into question, but
nothing herein contained shall be held to permit
the carrying of concealed weapons.
The federal provision, contained in the Second Amendment to
the U.S. Constitution reads: "A well-regulated militia being
necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed."
At present, the Second Amendment is not binding upon the states;
it affects only the federal government. Nonetheless, U.S.
Supreme Court cases provide interesting background and insights
to the court response to right to bear arms provisions. In
general, the Supreme Court decisions tend to conform with the
historical background of the Second Amendment; that is, the
chief concern of the right is seen to be the maintenance of
a well-regulated militia rather than the protection of any
broad individual right of possession. In fact, the Court,
ruling in U.S. v. Miller, expressly linked the right to bear
arms to the "well-regulated militia" clause:
In the absence of evidence tending to show that
possession or use of a shotgun having a barrel of
less than eighteen inches in length at this time has
some reasonable relationship to the preservation of
efficiency of a well-regulated militia, we can not
say that the Second Amendment guarantees the right
to keep and bear such an instrument . ^^
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RIGHTS OF EXPRESSION AND SUBSTANCE
In a more recent decision, a federal court held that the U.S.
Constitution's Second Amendment does not create a right, but
is a limitation on the power of government to infringe a right. ^^
Such a decision indicates that one seeking protection of the
right to bear arms should look elsewhere than the state
constitution in an effort to secure the right. The common law
apparently provides no basis for such protection, however;
rather the common law treats it as a privilege subject to
regulation or prohibition in the interest of public safety."*^
Since the U.S. Supreme Court has not ruled conclusively that
the Second Amendment protects the right of a private citizen
to keep arms, it can safely be assumed that the federal pro-
tection restricts the power of Congress — and perhaps, the state
legislature — to abolish the state's militia or disarm the citizen
to the extent that he could not perform as a militiaman in the
state's militia.
However, the Montana provision reads differently and does not
predicate the right to bear arms on the needs of a "well
regulated militia." The right clearly extends to the private
person to the protection of his home, person or property.
The provision also states the right of the person to aid the
state when legally summoned.
In 19 20, the Montana Supreme Court ruled that the Butte Miners
Union claim for property damages against the city of Butte,
alleging that an uncontrolled mob had destroyed its property,
was valid. The court noted that the fact that the union had
stored firearms in its meeting hall was not sufficient to
overturn the damage claim since "under the provisions of the
state Constitution, the right to protect property and to bear
arms in defense of person and property is guaranteed. " "■'•
Discussing possible situations which would override the damage
claim, the court said that the mere possession of firearms
within the union meeting hall was not sufficient; what was
necessary was that "such firearms were present in the building
for unlav/ful purposes." Accordingly, the court said, the right
to bear arms in defense of home, person and property shall not
be called into question. "^^
In a 19 40 case, the State Supreme Court again guaranteed the
right to bear arms in a situation in which a man had shot a num-
ber of elk for overgrazing his land. This case again centered on
the right to bear arms and the right to defend one's property. ^^
In a more recent case, the state court ignored the above-
mentioned distinction between the federal Second Amendment
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Rir.HTC OF EXPRESSION AND SUBSTANCE
and the Montana Constitution's provisions. In fact, making
then look identical, the court printed only the last clause
of the federal Second Amendment. '^ In this case, the court
reversed a conviction of one allegedly pointing a gun from
his premises; in doing so the court cited Revised Codes of
Montana, 1947, Gee. 94-3527, which authorizes "the carrying
of arms on one's ov/n premises or at his home or place of
r r
business , " "-"
That the Montana provision was not written to prohibit tlie
regulation of firearms possession is indicated by the con-
cluding clause of Section 13 of Article HI v/hich states that
the right granted does not endorse the carrying of concealed
weapons. That the provision has not operated to prohibit fire-
arms regulation is indicated by the fact that Montana law
contains several regulations dealing with the possession of
firearms. A few examples are the prohibition against importing
armed men into the state (Revised Codes of Montana, 19 47, Sec.
94-3524 and Sec. 31 of /article III); general prohibitions against
the carrying of a concealed weapons (Sees. 94-3525, 94-3527,
94-3529), and a prohibition of the carrying of any weapon by a
prisoner (Sec. 94-3527.1). The most significant state statute
on the control of firearms, however, is to be found in Section
11-9 57: "The city or town council has power ... to prevent
and suppress the sale of firearms, and carrying of concealed
weapons . "
The above notwithstanding, the debate over the scope of the
regulation of firearms continues. An example of the proposals
suggested for firearms regulation can be seen in the program
announced by John H. Glenn, Jr., who said:
Our proposals ask for three things only: (1)
licensing of gun-owners to keep guns out of the
hands of dangerous individuals; (2) registration
of guns so they cannot be passed on without control;
(3) a ban on mail-order and interstate sales to curb
evasive and "anonymous" sales
66
Opposition to such proposals is not difficult to find. It
includes some of the following points:
1. Gun control will not stop crime and violence because
crimes are committed by people with guns, not by guns alone.
2. Stronger gun controls will not prevent criminals
from obtaining weapons illegally.
3. The lawless and violent would only use other weapons
if they were deprived of guns.
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RIGHTS OF EXPRESSION AND SUBSTANCE
4. Proposed registration of guns would not have prevented
nor will it curb the alarming extent of political assassination.
5. Instead of making it more difficult for ordinary
citizens to obtain guns, the penalties for the commission of
crimes involving firearms should be increased.
6. Registration would affect adversely those who keep
guns for hunting, sportsmanship, self-defense or whatever.
7. The control of gun sales and ownership would lead to
the eventual disarmament of American citizens.
Advocates of the gun regulation proposals cited above are not
difficult to find, either. Some of their responses are given
below, the numbers corresponding to the above arguments.
1. F.B.I. Director J. Edgar Hoover, has said: "Those
who claim that the availability of firearms is not a factor in
murders in this country are not facing reality .... There
is no doubt in my mind that the easy accessibility of firearms
is responsible for many killings, both impulse and premeditated.'
2. The effort must be made to make it more difficult for
the criminal to obtain weapons, even if it cannot preclude
altogether his obtaining them.
3. Other weapons require the criminal to be in closer
proximity with his victim at greater risk to himself.
4. Bans on mail order sales of guns, a licensing provision
prohibiting the sale of guns to ex-convicts and increased
opportunity to screen potential purchasers of firearms could
have prevented three of the major political assassinations of
this decade-- John Kennedy, Martin Luther King and Robert F.
Kennedy.
5. In addition to the fact that experience has established
that stiffer penalties do not necessarily deter crime, the
primary reason for regulation is not to keep ordinary citizens
from obtaining firearms but to make it more difficult for
criminals to obtain them.
6. Under registration, guns would still be no more diffi-
cult to obtain than used cars, prescription drugs and passports.
They still could be used for lawful purposes.
7. Under a registration and licensing system, no responsi-
ble law-abiding citizen need turn in any gun. In addition.
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RIGHTS OF EXPRESSION AND SUBSTANCE
the argument summed up by the phrase "The Czechs Registered
Their Guns" cannot be taken seriously. Certainly, with five
Warsaw Pact nations invading, as occurred in Czechoslovakia,
the registration of guns is of relative insignificance . ^^
The debate continues with more arguments than could be dealt
with in an essay the size of this entire report. Perhaps, as
is noted by one recent commentator on state constitutional
right to bear arms provisions, "while most of the familiar
forms of arms regulation seem valid even under arms provisions
guaranteeing a right to private possession, those provisions
restrict to some extent the scope of permissible gun control. ""°
What must be kept in mind is that no state constitutional
provision, no matter how strongly worded, would override a
federal enactment regulating the sale or use of firearms.
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CHAPTER V
NOTES
1. Alexis de Tocqueville, Democracy in America (New York:
New American Library, 1956), p. 95.
2. Ibid. , pp. 97-98.
3. Hawaii, Legislative Reference Bureau, Article I: Bill
of Rights, Hawaii Constitutional Convention Studies
(Honolulu: University of Hawaii, 1968), p. 63. Cited
hereafter as Hawaii Reference Bureau, Bill of Rights.
4. Richard A. Chapman, "The Federalist and Apple Pie," Paper
delivered before the 1970 annual meeting of the American
Political Science Association, Los Angeles, September,
1970, p. 1.
5. Glenn i\bernathy. The Right of Assembly and Association,
(Columbia: University of South Carolina Press, 1961) ,
p. 11. Cited hereafter as TUsernathy, Assembly and
Association.
6. Henry Steel Commager, Freedom, Loyalty and Dissent (New
York: Harper and Row, 1954), pp. 112-114.
7. David Fellman, The Constitutional Right of Association
(Chicago: University of Chicago Press, 1963), pp. 2-3.
Cited hereafter as Fellman, Association.
8. Ibid. , p. vii .
9. NAACP V. Alabama, 357 U.S. 449 (1958).
10. Ibid. , p. 460.
11. Myron W. Solter, "Freedom of Association--A New and
Fundamental Civil Right," George Washington Law Review,
27 (June 1959) : 666.
12. NAACP V. Button, 371 U.S. 415 (1963).
13. Fellman, Association, p. 104.
14. Abernathy, Assembly and Association, p. 251.
15. Ibid.
-123-
16. Hawaii Reference Bureau, Bill of Rights, p. 64.
17. Alan Westin, "Science, Privacy, and Freedom: Issues
and Proposals for the 1970 "s," Columbia Law Review
66 (1966) : 1231.
18. Howard B. White, "The Loyalty Oath," Social Research
28 (Slimmer, 1961): 77. Cited hereafter as White, "Oath."
19. Robert L. Housman, "The First Territorial Legislature
in Montana," The Pacific Historical Review 4 (December,
1935): 380. Cited hereafter as Housman, "The Torritiorial
Legislature. "
20. Ibid. , p. 381.
21. It is interesting to note that Governor Edgerton himself
was not required to subscribe the oath as he was a
former chief justice of the Idaho Territorial Supreme
Court and was exempted.
22. Housman, "The Territorial Legislature," p. 381.
23. Emilie Loring's "Montana Bill of Rights," an under-
gradute paper written at the University of Montana in
1962, notes this discrepancy at pp. 6-7.
24. Senate Bill 163, 1971 Legislature.
25. Torcaso v. Watkins, 367 U.S. 488, 496 (1961).
26. Jethro K. Lieberman, Understanding our Constitution (New
York: Walker and Co., 1967), p. 137. Cited hereafter
as Lieberman, Constitution.
27. Baggett v. Bullitt, 377 U.S. 360 (1964).
28. Keyishian v. Board of Regents, 385 U.S. 589 (1967).
29. Lieberman, Constitution, p. 138.
30. National Municipal League, Model State Constitution, 6th
ed. rev. 1968 (New York, 1963, 1968), p. 3.
31. Howard B. White, "The Problem of Loyalty in American
Political Thought," Social Research 21 (Autumn, 1954):
316. Cited hereafter as White, "Loyalty."
32. Ibid. , pp. 316-317.
33. Ibid.
-124-
34. Ibid. , p. 138.
35. White, "Oath," p. 105.
36. Hawaii Reference Bureau, Bill of Rights, pp. 57-9.
37. Ralph J. Bean, Jr., "The Supreme Court and the Political
Question: Affirmation or TUDdication?" West Virginia Law
Review 71 (February, 1969): 99-100.
38. White, "Loyalty," p. 316.
39. Ibid. , p. 328.
40. White, "Oath," p. 109.
41. One eighteenth century democratic theorist, Jean Jacques
Rousseau, suggested the notion that the visibility of
government to the citizen was not enough. He argued in
his Social Contract that the citizen had to be the
government at periodic intervals; that is, at certain
times the government should fall open to complete citizen
scrutiny and assessment and that this situation, in which
the general will could be announced, was the true source
of institutional legitimacy. This essay deals with the
much narrower, and somewhat less democratic, concept of
the citizen's right to know. Accordingly, it ignores
the difficult auestions of institutionalizing the citizen's
power to assess the ultimate legitimacy of government,
focusing on the availability of governmental information
on its own operations. Thus, the essay does not deal with
the questions of citizen participation; rather, it is
concerned with citizen access and governmental visibility.
42. Missouri, University of Missouri, School of Journalism,
Freedom of Information Center, "How to Use the Federal
Public Records Act," (Columbia, n.d.).
43. Madison to Barry, August 4, 1822, in Saul Padover, ed..
The Complete Madison, 1953, p. 337. Cited from Kenneth
Salomon and Lawrence Wechsler, "The Freedom of Information
Act: A Critical Review," George Washington Law Review
38 (1969): 150. Cited hereafter as Salomon, "FOI."
44. Cited from Ibid. , p. 150.
45. Howard I. Kalodner, "The Right to Participate," The
Rights of .Americans, ed. Norman Dorsen (New York: Pantheon,
1971), p. 197.
46. John Hoorster, "The 1966 Freedom of Information Act--
Early Judicial Interpretations," Washington Law Review
44 (1969): 641. Cited hereafter as Hoerster, "FOI."
-125-
47. Ibid., notes 7 and 8 at p. 642.
48. Statement by President Johnson Upon Signing the Federal
Public Records Law, July 4, 1966.
49. Salomon, "FOI," p. 151.
50. Hoerster, "FOI," p. 64 5.
51. Salomon, "FOI," p. 163.
52. Missouri, University of Missouri, School of Journalism,
Freedom of Information Center, FOI Digest 11 (1969) : 6.
53. Hawaii Reference Bureau, Bill of Rights, p. 50.
54. Hannah Arendt, On Revolution (New York: Viking Press,
Inc. , 1963) , p. 272.
55. Montana, Constitutional Convention of 1889, Proceedings
and Debates of the Constitutional Convention (Helena:
State Publishing Co., 1921), p. 253.
56. Richard L. Perry, Sources of Our Liberties (Rahway: Quinn
and Boden Co., 1959) , pp. 231, 245-246.
57. Peter Buch Feller and Karl L. Getting, "The Second
Amendment: A Second Look," Northwestern University Law
Review 61 (March - April 1966): 62.
58. U. S. V. Miller, 307 U. S. 174, 178 (1939).
59. Cases v. U. S. , 131 F.2d 916 (1942).
60. Hawaii Reference Bureau, Bill of Rights, p. 11.
61. Butte Miner's Union v. City of Butte. 58 Mont. 391, 194
P. 149 (1920).
62. Ibid. , p. 402.
63. State v. Rathbone, 110 Mont. 225, 100 P. 2d 86 (1940).
64. State v. Nickerson, 126 Mont. 157, 166, 247 P. 2d 188 (1952)
65. On the need for applying this statute in the instant case,
see Angstman, J., dissenting. Ibid. , p. 168. Angstman's
contention is that the defendant did not allege he was
pointing a loaded firearm for the defense of his own
property; that, says Angstman, was first contended by the
majority court opinion. Accordingly, he would not reverse
the lower court conviction.
-126-
66. John H. Glenn, Jr., Gun Control: Pro and Con (Los
Angeles: New Chronicle Publishing Co. , 1968) , p. 12.
67. Cited, in general, from Ibid.
68. Michael D, Ridberg, "The Impact of State Constitutional
Right to Bear Arms Provisions on State Gun Control
Legislation," University of Chicago Law Review 38 (1970) :210
■127-
-128-
CIIAPTtJ^ VI
PKOCJaJUP.AL RIf;ii'l'.S AND ISSUi:
IN'i'UOUUCTION
This discussion accepts for organizational purposes the standard
distinction betv;een "substantive" and "procedural" liberties,
even though the individual essays indicate the distinction
does not represe-nt a solid line between the two. Many are
inclined to consider the traditional substantive liberties of
speech, press and religion as the most fundamental of the
rights enumerated in the declaration of rights. "However,
v/ithout . . . [the] procedural requirements, protection of
substantive rights would be flimsy, indeed."! Procedural
guarantees are a necessary part of the concept of written
guarantees of liberty and are as deserving of serious consid-
eration as their better-known counterparts. This is especially
true in a system that attempts to be "accusatorial rather than
inquisitorial . . . [where] society carries the burden of
proving its charge against the accused. . . ."^
A "revolution" in the area of procedural guarantees has been
noted,-' but it is a revolution of a particular sort. It amounts
to an extension of federal guarantees to more or less unwilling
states. During the 1960s, "nearly all the guarantees of the
Fourth, Fifth, and Sixth Amendments (to the United States
Constitution) have been made binding upon the states."^ Although
these rights have been extended to the states in a piecemeal
fashion under the judicial doctrine of "selective incorporation,"
the process is so nearly complete that the federal Bill of
Rights is almost universally applicable to state abridgements
of civil liberties. David Fox has noted that this
increasing federalization of the United States Bill
of Rights under the theory of selective incorporation
has reduced the status of New York's Bill of Rights
to the point where today, in many cases, it is no
longer the primary source of protection against state
action. ^
Fox continues that this application, apart from reducing the
status of the New York Bill of Rights, may have made several
of the state constitution's provisions clearly unconstitutional.
In this connection, a note of warning recently was soundea:
[T]ho future of our federal svstem of criminal
adjudication is ultimately in the hand of the
states. While expanding constitutional protections
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PROCEDURAL RIGHTS AND ISSUES
make virtually all criminal proceedings subject to
federal review, the degree of federal protection
has been and will continue to be affected by the
failure of state courts to provide adequate machinery
properly to adjudicate and review federal claims.
At present, district courts must defer to state find-
ings of fact made after full and fair hearing, thereby
leaving with state courts the power to control the
ultimate disposition of federal claims in most cases.
But this allocation of fact-finding responsibility
is not inviolate. The Supreme Court has made clear
that federal courts have power to review both law and
fact. It is up to the states whether this power will
be exercised to the full.^
Thus, it appears that the extent of federal ascendancy in the
area of civil liberties will depend on the degree to which
states meet the federal minimum procedural standards and make
an effort to regain their lost position as the guardians of
civil liberty.
The procedural provisions of Montana's Constitution are
arranaed in no particular order and are found scattered in
several sections throughout Article III.^ In one form or
another, they cover the traditional rights of due process of
law (v;hich also has a "substantive" aspect) , trial by jury,
speedy remedy, habeas corpus, bail, self-incrimination, double
jeopardy, the rights of counsel and confrontation, and the
right to compel the attendance of witnesses in one's own
behalf. A auick glance at this list gives some idea of the
necessity of the judiciary interpreting these provisions with
a view to increased specificity of application. The major
principles of the procedural rights are discussed below. The
rationale of other guarantees also is offered and specific
oroblem areas are considered.
HABEAS CORPUS
By the end of the sixteenth century in England, the medieval
writs used to secure the release of prisoners on bail in
certain cases had become ineffective. Lord Macaulay noted
this and went to the heart of the habeas corpus issue when
he said: "what was needed was not a new right, but a prompt
and searching remedy. "^
The writ of habeas corpus, then, is not so much a fundamental
freedom as it is "a mechanism for the protection of the basic
■130-
PROCEDURAL RIGHTS AND ISSUES
right of personal liberty. "^ It has been called "the 'Great
Writ', the remedy for restraints on liberty contrary to due
process of law."^^ Habeas corpus is an ancient device, but
its application was not alv/ays what it became. It was applied
in the thirteenth century to secure the appearance of the
defendant before the court and, additionally, to summon juries.
Until the fifteenth and sixteenth centuries, there was no
established process for exercising the remedy; in fact, the
eventual ascendancy of the principle probably had more to do
with jurisdictional disputes betv;een common law and ecclesi-
astical courts than anything else.
Rollin C. ilurd defines habeas corpus as "that legal process
which is employed for the summary vindication of the right
of personal liberty when illegally restrained. " •'•■'■ It is a
procedural remedy by which one has access to established
judicial machinery in order to test the legitimacy of his
detention.
The Montana provision on habeas corpus reads much like those
in otlier states. It is contained in Article III, Section 21:
"The privilege of the writ of habeas corpus shall never be
suspended, unless, in case of rebellion, or invasion, the
public safety shall require it." This provision probably v/as
copied from the federal bill of Rights, The Montana delegates
who adopted it probably v/ere unaware of the close vote in the
First Congress of the United States that kept the federal
provision from providing a writ of habeas corpus tliat could
never be suspended.
On this point, the 1970 Illinois Constitutional Convention
Committee on the Bill of Rights also narrowly defeated a
proposal to preclude the suspension of habeas corpus. The
proposal v;as designed to affirm the principle that any person
should have the greatest possible access to the existing
judicial macliinery in order to challenge his confinement. The
majority of the committee, noting that the chief executives
of various states circumvented similar provisions by declaring
martial law, desired that the legislature retain its power
to suspend the right in extraordinary circumstances. They
stated that the resort to martial law or other executive action
might entail undesirable legal effects beyond detention. ^2
That committee's discussion is not the end of the matter,
however; nine states currently have in their fundamental laws
the provision that "the writ of habeas corpus shall never be
suspended. '
The President's Crime Commission noted the importance of
readily accessible habeas corpus without specifically dealing
with the question of suspending the writ:
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PROCEDURAL RIGHTS AND ISSUES
Frequently this procedure is the only way ... [a
person convicted] can obtain judicial consideration
of substantial constitutional infirmities in the
process by which he was convicted. The availability
of such a remedy is embodied in the Constitution and
is basic to our system of law.l^
Apart from the question of the possible suspension of habeas
corpus, issues arise concerning its operation and effect. Over
the years there has been a rapid increase in the use of habeas
corpus petitions. This, coupled with a popular prejudice
favoring judicial finality and the friction that has developed
between the states and the federal government over appropriate
standards of application, has brought the writ under scrutiny.
The anxiety created by the seeming inconclusiveness of judicial
proceedings involving habeas corpus is somewhat understandable;
however, so is the increasing judicial concern with the right
of one imprisoned to test the legitimacy of his detention.
Part of the solution to the problem of the increasing use of
habeas corpus is an increased regard for the constitutional
rights of one subjected to an accusatorial proceeding. Another
important remedy lies in the improvement of state post-detention
procedures. There is little doubt that "the broad scope of
federal habeas corpus as a remedy for state prisoners has
aggravated the tension in federal-state relations." Too, the
release of a surprisingly high number of state prisoners by
the federal courts indicates that states have denied petitioners
federally assured rights.^''
Some states have little or no procedure at all for relief.
According to the President's Crime Commission:
[M]ost of the remainder rely on a faulty and anti-
quated system of ill-defined common law remedies
that fall far short of the protection available
in Federal courts and of that which is constitu-
tionally required. 1^
An outline of a possible habeas corpus procedure was given
by Justice Brennan. After noting a substantial drop in the
number of federal applications from state prisoners in one
state that had updated its procedure, he said:
The procedure should be swift and simple and easily
invoked. It should be sufficiently comprehensive
to embrace all federal constitutional claims ....
It should provide for full fact hearings to resolve
disputed factual issues, and for compilation of a
record to enable federal courts to determine the
sufficiency of those hearings .... It should
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PROCEDURAL RIGHTS ANU ISSUES
provide for decisions supported by opinions, or
fact-findings and conclusions of law, which dis-
close the grounds of decision and the resolution
of disputed facts. "
Statutory embellishments of the Montana habeas corpus provision
can be found in Chapters 26 and 27 of Title 95 of the Revised
Codes. Review of these provisions will indicate to what extent
the Montana practice conforms to the above suggestions.
Another problem noted by the President's Commission was the
lack of effective counsel for persons with a habeas corpus
claim. The Commission said that the provision of counsel
for nersons in a habeas corpus action would tend to curtail
worthless petitions and also v;ould improve the quality of
petitions that are sometimes written by the inmates them-
selves. Also mentioned v;ere programs in several states
that provide legal advice through law professors and students
in addition to practicing attorneys. The Commission's summary
recommendation sheds light on the possible revision of Montana's
habeas corpus provision:
States that do not have procedures that provide
adequate postconviction remedies should enact
legislation or establish rules that do provide
a single, simple remedy for all claims of depri-
vation of constitutional right. These procedures
should provide for the assistance of counsel.
Petitions should be decided on their merits rather
than upon procedural technicalities.-^'
The habeas corpus provisions of the Puerto Rico Constitution
are a specific alternative. Article II, Section 13 of that
Constitution provides: "The writ of habeas corpus shall be
granted without delay and free of costs . . . [emphasis added] .
A potentially broader statement of the habeas corpus writ
provisions is found in the North Carolina Constitution. Article
I, Section 21, titled "Inauiry Into Restraints on Liberty,"
provides :
Every person restrained of his liberty is entitled
to a remedy to inquire into the lawfulness thereof,
and that remedy shall not be denied or delayed. The
privilege of the writ of habeas corpus shall not be
suspended.
DUE PROCESS OF LAW
No person shall be deprived of life, liberty, or
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property without due process of law. [Montana
Const. Art. Ill, Sec. 27]
The forerunner of the modern day "due process of law" clause--
perhaps the broadest concept shaping judicially stipulated
procedural rights--is found in the Magna Carta. Section 39 of
that venerable document reads:
No free man shall be taken or imprisoned or dispos-
sessed, or outlawed, or banished, or in any way
destroyed, nor will we go upon him, nor send upon
him, except by the legal judgment of his peers or
by the law of the land.
This phrase is traceable through twelfth century English law-
books to the eleventh century Holy Roman Empire.-'-^ At least
as early as the fourteenth century, this "law of the land"
provision was equated with the phrase, "due process of law
In the middle of that century. Parliament announced:
19
That no man of what estate or condition that he be,
shall be put out of land or tenement, nor taken nor
imprisoned, nor disinheritied, nor put to death,
without being brought in answer by due process of
the law. 20
It was this principle that was applied successfully in the
Parliamentary battle against the inquisitorial procedures of
the Court of the Star Chamber. This constantly redefined
principle of due process was one of the most important found
in the Magna Carta. And in the American experience, "probably
no other principle of individual liberty was more frequently
embodied in the colonial charters and statutes. "^1 The earliest
use of this provision in the colonies was in statutes declaring
that the Magna Carta was applicable to colonists; in 1641,
the Massachusetts Body of Liberties paraphrased the Magna Carta
and gave due process of law its first written constitutional
status .
For such a brief phrase, the due process clause today is quite
powerful and its retention in the fundamental law is seldom
questioned. h danger should be noted, however. Many rights
are implicit in the concept of due process; since these are
subject to change as courts redefine due process, consideration
should be given to the separate statement of guarantees that
are believed to be a part of due process but that may require
specific enumeration to insure their explicit application.
There is ample historical evidence that the broad "due process
of law defies definition to cover all conceivable denials of
it, present and future. "22 jn fact, the entire history of
United States Supreme Court interpretation of due process from
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PROCEDURAL RIGHTS AND ISSUES
its adoption is one of excluding particular rights of the
federal Bill of Rights from the Fourteenth Amendment due
process phrasing, thereby denying their applicability to
state action which allegedly violated due process of law.
Justice Black, dissenting in the 1947 Adamson case, listed
those rights which the states were not required to follow;
the list included nearly the entire Bill of Rights and indi-
cated an erosion of due process of the most chronic magnitude. 23
What the court actually accomplished during this period was
an extension of due process to the corporation as a "person" —
an extension for which there was no apparent justification in
any of the debates on the Fourteenth Amendment — and an oblit-
eration of the due process rights as they applied to individuals,
The due process cases that overflowed the courts were, in the
main, corporate cases.
[F]or more than sixty years, it became the principal
political business of the financial community to seek
the election of presidents who would appoint judges
who would make the kind of decisions that would suit
the digestive process of these all-too-natural
"persons". There were few indications during these
halcyon years that the word also took in the human
race. 24
Finally, in 1940, the Olsen decision announced that although
the corporation was still a "person," the substantive due
process guarantees would not guarantee corporate profits or
render a corporation immune to government regulation. 25 what
had happened over the years was that the Supreme Court had
denied its own 1856 dictum that the meaning of the Constitution
was to be sought in
those settled usages and modes of proceeding
existing in the common and statute law of England
before the emigration of our ancestors, and which
are shown not to have been unsuited to their civil
and political condition by having been acted on by
them after the settlement of this country. 26
In doing so, the court gradually whittled away constitutional
rights that many believe should have had due process extension.
The Founding Fathers, who set forth the explicit rights of the
Bill of Rights because they felt them to be fundamental, might
have been appalled to see those rights adjudged to be outside
the criteria for incorporation into due process of law. The
judicial statement of this point can be found in the Harlan
dissent in the Hurtado case. 27 Recently, the courts have felt
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PROCEDURAL RIGHTS AND ISSUES
compelled to retrace their steps and begin "the slow, inter-
mittent, difficult and painful restoration of the constitutional
rights thus taken away. "28
Thus, a broad statement guaranteeing due process is not an
unmixed blessing. Though the content of due process no doubt
gives valuable elbowroom to the judiciary in the development
of substantive and procedural rights, a jealous regard for
more important aspects of that due process indicates that
they should be stated separately. If specific rights are
found significant, it would be wise to enumerate them specif-
ically rather than casually assume that they fall under someone's
notion of what due process of law contains. The current appli-
cation of due process is as broad as this discussion has
indicated. It has been extended in such directions as guar-
anteeing fair play, the general standards of society and, more
especially, the concepts of liberty and justice believed funda-
mental to the development and maintenance of American civil
and political institutions.
DOUBLE JEOPARDY
Perhaps the most ancient of the procedural guarantees is the
protection against double jeopardy. In fact, this "protection
against multiple trials . . . seems to have been so well-
established in our legal heritage that its origin has been
lost. "2^ It is reasonably certain that the principle existed
in classical antiquity with a limited exposition in the Digest
of Justinian. By 355 B.C., Demosthenes had argued that "the
laws forbid the same man to be tried twice on the same issue. "^0
Although it may or may not have reappeared in England in the
early fourteenth century, the principle did appear in the
writings of Hale and Coke of the seventeenth century and Black-
stone of the eighteenth. At that time there was a series of
four pleas, two of which--previous conviction and previous
acquittal--are especially relevant to the application of double
jeopardy today. •^■'■
Thus, prior to its incorporation into the Fifth Amendment to
the United States Constitution, double jeopardy was an entrenched
principle in English jurisprudence. With such an impressive
background, it might be assumed the principle has achieved a
clear expression in modern times. Such is apparently not the
case, however. One commentator has noted:
The riddle of double jeopardy stands out today as
one of the most commonly recognized yet most
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PROCEDURAL RIGHTS AND ISSUES
commonly misunderstood maxims in the law, the passage
of time having served in the main to burden it with
confusion upon confusion . -^^
Another states that it is "more commonly revered than under-
stood" and that it is not always revered. He refers to the
statement of an earlier writer that double jeopardy is a
"quaint relic of medieval jargon. "33
The significance of the principle of double jeopardy centers
around a prohibition against retrying a person for an offense
for which he previously has been convicted or acquitted. It
was designed initially to prevent the government, with all
its resources, from harassing an individual by subjecting him
and society to the expense of repeated prosecution. Justice
Black summed this up in 19 57:
The state with all its resources and power should
not be allowed to make repeated attempts to convict
an individual for an alleged offense, thereby sub-
jecting him to embarrassment, expense, and ordeal,
and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found
guilty. 34
Based on that reasoning, the principle of double jeopardy was
incorporated into the Fifth Amendment to the federal Constitu-
tion and nearly all the state constitutions. It is found in
Article III, Section 18 of the Montana Constitution with typical
wording: "nor shall any person be twice put in jeopardy for
the same offense. "35
An early leading federal case on double jeopardy concerned
itself with the effect of a state appeal on the double jeopardy
protection. 36 -phe court held that, although an appeal by the
federal government after a defendant's acquittal violates due
process, permitting the state to do so did not violate due
process. This occurred after the federal Court had incorpo-
rated the First Amendment into the due process clause of the
Fourteenth, thereby making it applicable to the states. The
court did not, however, feel inclined to do this with the
protection against double jeopardy as it did not hold this
protection (and many other federal Bill of Rights provisions)
to be "of the very essence of a scheme of ordered liberty."
Thus a state appeal was held not to violate the "fundamental
principles of liberty and justice which lie at the base of
all our civil and political institutions. " 37
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PROCEDURAL RIGHTS AND ISSUES
The court did not really deal with the central issue of double
jeopardy--repeated harassment of an individual by government —
but ruled only that jeopardy was continuous until a final
verdict. Such a determination did not square the states with
the federal practice, however, for at the federal level such
an appeal would constitute double jeopardy.
Since this 1937 case, the court has recently extended the
riqht to cover the states. -^° Benton v. Maryland, decided in
1969, specifically overrules the 1937 decision and holds that
a retrial by the state of an accused who has been acquitted
violates due process of law.^^ Later cases further outline
the court's understanding of the double jeopardy clause.
In Price v. Georgia, the court noted that it had
consistently refused to rule that jeopardy for
an offense continues after acquittal, whether
that acquittal is express or implied by a con-
viction on a lesser included offense when the
jury was given full opportunity to return a
verdict on the greater charge. ^^
In the Scime case. Chief Justice Burger cited an 1896 Supreme
Court decision which held:
The Constitution of the United States, in the Fifth
Amendment, declares, "nor shall any person be
subject [for the same offense] to be twice put in
jeopardy of life or limb." The prohibition is not
against being twice punished, but against being
twice put in jeopardy . . . .^^
From these two statements, the general outline of the current
understanding of double jeopardy emerges. Double jeopardy
protects one against being "put in jeopardy" more than once;
in addition, for the state to appeal the acquittal of a
defendant is double jeopardy. This definition did not solve
the problems of double jeopardy, however, and two recent
decisions have added new depth to the rule. One, Ashe v.
Swenson, holds that in a criminal case a state cannot relitigate
on a question already decided in favor of the defendant at
a previous trial. ^^ The other case. Waller v. Florida, bars
states and municipalities from successive prosecutions for
offenses based on the same criminal conduct. ^^
These two cases, taken together, bring up the question of
whether the court eventually may force the state to raise
all its claims against a defendant at a single trial or forego
the possibility of prosecution.''^ That, in turn, points up
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PROCEDURAL RIGHTS AND ISSUES
the most critical issue in the area of double jeopardy:
the so-called "two sovereignties" rule. This rule "purports
to justify successive state and federal prosecutions for
the same act on the ground that the two jurisdictions are
separate sovereign entities, each having a separate interest
which it is entitled to vindicate. "45
Two leading U.S. Supreme Court decisions announced the two
sovereignties rule. In the first, Bartkus v. Illinois, the
defendant was first tried in federal court and was acquitted.
Subsequently, he was convicted in state court on a similar
charge coupled with a count under the Illinois Habitual
Criminal Act. The Supreme Court, in a 5-4 decision, held
that the defendant had not been denied due process of law. 4"
The second case, Abbate v. U.S., upheld a double conviction
of defendants who allegedly conspired to dynamite certain
telephone company facilities. The 6-3 decision held that
federal law enforcement would be hindered if state prosecution
barred federal prosecution. '^7
Both decisions have been strongly criticized by judges and legal
scholars. The Black dissent in the Bartkus case is an example.
He argues that double punishment was no less reprehensible
because inflicted by two sovereigns. Emphasis on the danger
to the presumed innocent, he said, would preclude the two-trial
approach. Black went on to note that any federal law enforcement
interest could be protected by Congressional action rather than
by encroaching on double jeopardy protection. 4°
In addition to Black's dissent and considerable other legal
criticism, there is a principle of international law which bars
prosecution in a country after trial by another country which
has concurrent jurisdiction. ^^ The court itself, from time
to time, has rejected the "distinct sovereignties" notion that
formed the basis of the two sovereignties rule and has hailed
an "age of 'cooperative federalism'" which would seem to
indicate a more cooperative approach to the various state and
federal interests.^"
There is a good chance that the two sovereignties rule has only
a short life left. The solution to the problem seems to lie in
the realm of increased federal and state cooperation in deciding
which entity should prosecute. ^^ Certainly additional consider-
ation must be given to the predicament of a defendant faced with
the possibility of more than one prosecution. ^^ A committee of
the Association of the Bar of the City of New York has recommended
that, until the two sovereignties rule is modified or abolished,
states should provide by constitutional mandate the protection
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PROCEDURAL RIGHTS AND ISSUES
of the rights of the defendant by yielding their jurisdiction
and refraining from repeating federal prosecution. -^
SELF-INCRIMINATION
No person shall be compelled to testify against
himself, in a criminal proceeding .... [Montana
Const. Art. Ill, Sec. 18]
In the middle of the seventeenth century, one John Lilburne,
having run afoul of certain press strictures of the importation
of books, was called to answer before the Star Chamber. He
announced that as a matter of "fair play," the "due process of
law" and "the good old laws of England," he did not have to
answer any questions "against or concerning" himself. ^4 Lilburne
argued that self-incrimination violated both the Magna Carta
of 1215 and the Petition of Right of 1628 — two documents pre-
viously mentioned as being central to the development of written
guarantees of civil liberty.
Both before and after Lilburne 's statement before the Star
Chamber, the right against self-incrimination has been continually
interpreted, expanded, lauded and denounced. The right and its
continuing judicial interpretation is still a matter of dispute
with, for example, a number of constitutional historians denouncing
recent Supreme Court decisions for having "flunked history," for
using "law office history" and "for abusing historical evidence
in a way that reflects adversely on their [the justices'] intel-
lectual rectitude as well as their competence. "^^
The debate centering around the right runs the gamut from
denigrating it as an historical relic that is "nothing in truth
but a misquotation consecrated by age," to civil libertarian
disappointment that the right is not as broad as it might be.^^
Somewhere in between are expressions praising recent U.S. Supreme
Court decisions which have a solid, though unacknowledged, ally
in history. 57
Indeed, no civil liberty has been so widely criticized as this
which prevents the one person who supposedly knows most concerning
the alleged criminal act from being compelled to testify. ^8 nq
less an authority than former Chief Justice Charles Evans
Hughes recommended its abolition. ^^ On the other hand, perhaps
no more sign of the perennial necessity of the right need be
noted than Senator Joseph McCarthy's temporarily popular derision
of what he called "Fifth Amendment Communists."
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PROCEDURAL RIGHTS AND ISSUES
The right against self-incrimination originated in protests
demanding that noncomformists be shielded from the ecclesiastical
courts' practice (used notably by the High Commission and the
Star Chamber) of calling before them suspected heretics who were
required to swear oaths and answer incriminating questions
generally without being subjected to any formal charge or being
treated to the procedural right of confronting their accusers.
Thus, the right was asserted to prohibit compelling a person to
tell the truth to his own detriment. Those who desire to see
the right restricted often forget that it initially exluded true
testimony (as distinguished from the exclusion of the false and
unreliable testimony that frequently results from a coerced
confession) and was designed to protect those who were, in all
probability, guilty. More precisely, it protected those guilty
of holding opinions critical of their government or church or
of violating laws they considered to be unjust. ^^
Among the early victims of the practice of coerced self-
incrimination were Puritans and other religious and political
nonconformists. The fact that some of these immigrated to the
New World and brought with them their opposition to self-
incrimination goes far to explain the firm roots the principle
has in the American experience. In the colonies, some of the
most vehement in demanding the right were those who violated
British colonial regulations; they sought in it protection
from the prerogative courts of the royal governor and councils. ^^
At least seven of the thirteen original colonies had a provision
protecting the right in their constitutions. It was included
among the rights demanded by four states during the federal
Constitution ratification process. Proposed by James Madison,
the right was adopted into the Bill of Rights with no debate
in the First U. S. Congress. It currently is protected, mainly
by constitutional provision, in all fifty states. In addition,
the U. S. Supreme Court has ruled that the federal Constitution's
Fifth Amendment provision is incorporated into the Fourteenth
Amendment and thereby sets minimum standards of protection for
state compliance. ^2 However, this does not necessarily limit
the states' ability to effect meaningful constitutional changes
in this area. The court has made it clear in several cases that
states were free to develop their own safeguards, so long as
they are "at least as effective [as those prescribed by the Court]
in apprising accused persons [for example] of the right of
silence and in assuming a continuous opportunity to exercise it."^^
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PROCEDURAL RIGHTS AND ISSUES
The Montana Provision
The self-incrimination provision in the Montana Constitution
[Art. Ill, Sec. 18] is quite similar in wording to that of the
federal Constitution: "No person shall be compelled to testify
against himself, in a criminal proceeding . . . ." The federal
Constitution [Fifth Amendment] provides "nor shall [any person]
be compelled in any criminal case to be a witness against
himself . . . ." A problem with these wordings is that neither
provision squares with the contemporary practice. That is not
to say that the right has been bent out of recognition by the
courts. Rather, as the Montana provision reads, it may be sus-
pected that it is the right of an accused to remain silent in
the face of an incriminating question in a criminal proceeding.
But before and even at the time of the adoption of similar
language in the federal Constitution, the practice extended beyond
the right of the accused defendant, was successfully evoked for
questions other than those which were only incriminating and
was applied in civil proceedings as well as criminal. In 1776,
Delaware removed the right from its other "rights of the accused"
and gave it separate status. The wording of the provision in
Article I, Section 15 was quite broad: "That no man in the Courts
of Common Law ought to be compelled to give evidence against
himself." Maryland had a similar limitation.
To make this point more clear, it should be remembered that at
the time the right against self-incrimination was framed, the
accused was not permitted to testify at all on the theory that
he had too great a stake in the outcome of the proceeding. This
is telling evidence that the right was intended to apply to
witnesses, for if the accused could not testify it would be
unnecessary to give him a right against self-incrimination. The
U.S. Supreme Court, in 1892, holding that the right also applied
to witnesses, said: "It is impossible that the meaning of the
constitutional provision can only be that a person shall not be
compelled to be a witness against himself in a criminal proceeding
against himself. "^4
According to Levy, this right against self-incrimination was
extended to witnesses in England as early as 1649. It was also
a stated principle in American manuals of legal practice through-
out the eighteenth century, as well as in such well-known English
treatises as Blackstone and Hawkins. ^^ To the questions of
whether one can be compelled to answer in a civil action a
question which could lead to a criminal sanction, the answer is
clear: the right covers such a question and the person asked
may refuse to answer. There is an abundance of English and early
American state decisions on this matter, and it is contained in
the case familiar to every student of American government, Marbury
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PROCEDURAL RIGHTS AND ISSUES
V. Madison. ^^ There are also a number of forgotten or abandoned
state cases and one federal case extending the right to cover
answers which would not incriminate but would adversely affect
the person's civil interests or property rights. ^^ However,
the general rule now is that one must testify even if he is
exposing himself to the possibility of a civil suit.
In the same vein, there are many early state cases in which
persons were not required to answer if their answer would expose
them to public disgrace or infamy. The forerunners of this
dimension of the right were Protestant reformers of the sixteenth
century who argued that no man should have to accuse himself.
Common lawyers, including Sir Edmund Coke, the English case law.
Blacks tone, and even the Star Chamber accepted the idea. Despite
this and the fact that American manuals of practice also stated
the principle, the U. S. Supreme Court, in Brown v. Walker,
ruled against it in a decision in which the court is alleged to
have been "oblivious to the history of the matter. "^8 g^t the
court reaffirmed the Brown decision in 19 56 with Justice
Frankfurter stressing the importance of history to the decision. 69
Regardless of the Supreme Court view on the matter, it appears
the rights against self-incrimination and self-infamy had a
common footing. ^0
In 1649, John Lilburne unsuccessfully claimed the right to
remain silent before a Parliamentary committee. Debate on this
dimension of the right--to remain silent before a legislative
committee — continued in the colonies where some legislatures
accepted and others rejected the principle. In 1964, the U.S.
Supreme Court extended the right to cover legislative investi-
gations . ^■'■
The above discussion raises again the question of the extent
of the right. Certainly the state constitutions wording is
narrower than the practice. But should the right be extended
to cover all manner of governmental proceedings against an
individual? The Montana experience with the right may illu-
minate this question.
In general, it appears true that the Montana courts have
"accorded far-reaching recognition to the privilege against
self-incrimination. " ^2 Although there was no discussion on
the provision in either the 1884 or 1889 conventions, the
right was well-recognized in the Anglo-American law and was
found in the constitutions of states to which Montana turned
for reference. Prior to the 1884 Convention, there existed
statutory protections of the right against self-incrimination
in Montana. Two statutes with very similar language were
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PROCEDURAL RIGHTS AND ISSUES
adopted in 1871. One read: "No person can be compelled, in
a criminal action, to be a witness against himself ..."
[Revised Codes of Montana, 1947, Sec. 94-4808]. The other was
one of the earliest stating the defendant's right to testify
on his own behalf:
A defendant in a criminal action or proceeding
cannot be compelled to be a witness against himself;
but he may be sworn and may testify in his own
behalf, and the jury in judging of his credibility
and the weight to be given to his testimony may take
into consideration the fact that he is the defendant,
and the nature and enormity of the crime of which he
is accused. If the defendant does not claim the right
to be sworn, or does not testify, it must not be used
to his prejudice, and the attorney prosecuting must
not comment to the court or jury on the same. [Revised
Codes of Montana, 1947, Sec. 94-8803]
The clause in the latter statute referring to a defendant's
decision not to testify lays groundwork for the notion that
no comment may be made on his refusal and his refusal to
testify should not prejudice his case. No cases have come
up in Montana where a prosecuting attorney has violated this
restriction on comment. Likewise, there is no precedent
dealing with the case of a judge commenting on a deftendant's
decision not to testify. It seems clear that this state joins
with nearly all others in forbidding any comment on a defendant's
refusal to testify. On this point, the Puerto Rico Constitution
[Art. II, Sec. 11] contains explicit guarantee that no comment
can be made on the defendant's decision not to testify: "and
the failure of the accused to testify may be neither taken into
consideration nor commented upon against him."
The second of the two Montana statutes cited above contains a
peculiar sounding clause: "and the jury in judging of his
credibility may take into account the fact that he is the
defendant, and the nature and enormity of the crime of which
he is accused." On its face, this statement seems to destroy
the presumption of innocence traditional to the accusational
system; various defendants have claimed as much. However, the
State Supreme Court has upheld the lower courts' prerogative
of reading this portion of the statute to the jury.'-^ In fact,
such an instruction was upheld in a case where the Witness had
not even taken the stand. '^
Consideration of further constitutional clarity on this point
seems in order. A constitutional re-statement of the presumption
of innocence is a possible alternative, although in any case
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PROCEDURAL RIGHTS AND ISSUES
such presumption is guaranteed by the common law. The Puerto
Rico Constitution contains an explicit guarantee of the pre-
sumption of innocence in Article II, Section 11: "In all
criminal prosecution, the accused shall enjoy the right . . .
to be presumed innocent."
On the question of testimony which might tend to degrade,
Montana has an interesting statute that is an ambiguous
extension of the right against self-infamy:
A witness must answer questions legal and pertinent
to the matter in issue, though his answers may
establish a claim against himself, but he need not
give an answer which will have a tendency to subject
him to punishment for a felony; nor need he give
an answer which will have a direct tendency to degrade
his character, unless it be to the very fact in issue,
or to a fact from which the fact in issue would be
presumed, but a witness must answer as to the fact
of his previous conviction foor elony. [Revised Codes
of Montana, 1947, Sec. 93-3102-2]
Several convictions have been reversed on this question. ^^ In
fact, the convictions were reversed because a degrading question
was asked, regardless of the answer denying the degrading be-
havior. This distinguishes this situation from the general
procedure in questions of self-incrimination. Ordinarily, in
the case of incriminating questions, the question is posed and
the witness refuses to answer; such is not the case with
degrading questions.
There appears to be some problem with the capacity of the
defendant to waive his right against self-incrimination. Since
it is a personal right, he may do so; but in taking the stand he
becomes subject to cross-examination and impeachment as are
all other witnesses. He also supposedly is protected in the
Scune manner as other witnesses. For example, the cross-
examination to which he is subjected can be neither irrelevant
nor defaming. 76 However, an interesting problem arises when
a defendant decides to take the stand. The Greeno case held
that in doing so he waives the right against self-incrimination.''
This does not seem to square with the notion that he still has
on the stand all the protections afforded any other witness;
for an ordinary witness can, subject only to a possible contempt
citation, invoke the right to refuse to testify. The presumption
of a defendant's innocence could be further strengthened if,
upon taking the stand, he still could refuse to answer specific
questions.
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PROCEDURAL RIGHTS AND ISSUES
An example of the type of problems encountered when a defendant
waives his right against self-incrimination can be seen in the
loyalty-security hearings conducted by the U. S. Senate Internal
Security Subcommittee in the middle 19 50s. The notion that one
who voluntarily testified as to materially criminating facts
therefore waived his recourse to the Fifth Amendment led to a
number of prosecutions under the Smith Act. The Smith Act was
one of a rash of guilt-by-association laws passed during the
1950s; in fact, it was the first sedition act passed in the
United States since the Alien and Sedition Acts of 1798. In the
loyalty-security hearings conducted to investigate possible
violations of these acts. Senator Joseph McCarthy often asked
a witness if he had ever been engaged in Communist espionage;
when the witness responded with an unqualified "no," McCarthy
then would claim that the witness had, by that answer, waived
the protections of the Fifth Amendment and had to answer all
subsequent questions. Witnesses who were aware of this inquis-
itorial type of procedural tactic often invoked the Fifth Amend-
ment at the outset. At this point, two things could occur:
(1) they could be cited for contempt or (2) they joined Senator
McCarthy's burgeoining list of "Fifth Amendment Communists." The
popularity of these blatant denials of fair procedure wore
off and Senator McCarthy was later censured for his conduct by
the United States Senate.
78
This example of abuse of the right against self-incrimination
is taken from the administrative realm. However, it does help
explain the problem confronting a witness when he has to choose
at what point to evoke the Fifth Amendment. Guidelines in this
area are not clear: too early, and there is the possibility
of a contempt citation; too late, and the court may rule that
the previous answers amounted to a waiver of the protection. In
the last analysis, the right against self-incrimination is a
broad one, initially invoked in defiance of inquisitorial
administrative and judicial procedure. Consistent with its own
origins, the right can provide safeguards that will aid the
effort to maintain the accusatorial nature of all proceedings.
The next essay deals further with the effort to curb inquis-
itorial procedure and with the question of when a proceeding
begins .
POLICE INTERROGATIONS
A shift has occurred in the attitudes of the U.S. Supreme Court
concerning the value of confessions in the investigation and
prosecution of the accused. In 1884, the court, through Justice
Harlan, said that a confession "if freely and voluntarily made,
is evidence of the most satisfactory character ." ^^ In 1964,
the court declared:
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PROCEDURAL RIGHTS AND ISSUES
[A] system of criminal law enforcement which comes
to depend on the "confession" will, in the long run,
be less reliable and more subject to abuses than a
system which depends on extrinsic evidence independ-
ently secured through skillful investigation. ^^
Controversy surrounds this area of procedure to a greater degree
than perhaps any other provisions. According to a leading
constitutional historian, "history is ambiguous on the contro-
versial issue of current interest, whether the right against
self-incrimination extends to the police station. " ^•'- As noted
above, the initial efforts to secure a right against self-
incrimination were a protest against interrogation conducted
prior to formal accusation. That is, at the root of the right
against self-incrimination is a protest against an inquistorial
procedure that bears more than a slight resemblance to the
current practice of police interrogation. In the practice of
the High Commission and the Star Chamber, a person was required
to answer questions without any procedural rights against self-
incrimination. In response to this practice, the early maxim,
nemo tenetur seipsum prodere (no one is bound to accuse himself),
meant that a person could not be required to supply the evidence
that could indict him.
In 1966, at a time when much concern was being expressed nation-
wide about police interrogation, the Supreme Court handed down
rules to protect the rights of suspects under interrogation.
The court required that prior to interrogation, any person "taken
into custody or otherwise deprived of his freedom of action in
any significant way" had to be given certain warnings. °^ Noting
that the adversary system of justice commences at the time when
an individual is taken into police custody, the court listed
four warnings that had to be made. The suspect had to "be
informed in clear and unequivocal terms that he has the right
to remain silent .... The warning of the right to remain silent
must be accompanied by the explanation that anything said can
and will be used against the individual in court." In addition,
the accused "must be clearly informed that he has the right to
consult with a lawyer and to have the lawyer with him during
interrogation . . . ." Lastly, "it is necessary to warn him
not only that he has the right to consult with an attorney, but
also that if he is indigent a lawyer will be appointed to repre-
sent him." In addition to requiring these warnings, the court
made it clear that a heavy burden was placed on the prosecution
if a question rose as to whether a waiver of the rights to
counsel and silence had, in fact, been made. The mere fact that
a defendant proceeded to answer questions would not lead to a
presumption that he had knowingly and intelligently waived his
rights.
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PROCEDURAL RIGHTS AND TSSUKS
This decision, which extended Ijcyond immodialc pri>f«.<denL Lhe
right of self-incrimination by declaring it app 1 ictble to the
"gatehouse" of American criminal procedure, did ho witli some
historical justification. The decision did not meet with
universal approval. Law enforcement officials were alarmed;
civil libertarians were dissatisfied. For example, the American
Civil Liberties Union, in an amicus curiae brief, unsuccess-
fully urged the court to require presence of counsel as a
precondition for any police interrogation.
The court seemed to be saying that the protections surrounding
the accusatory nature of a trial would become empty without
the warnings required. Quoting a Harlan dissent, the court
said that the trial — where guilt is supposed to be proven —
would be little more than an appeal from the interrogation
procedures of the stationhouse, "where the most compelling
possible evidence of guilt, a confession, would have already
been obtained at the unsupervised pleasure of the police. "^-^
In addition, the court was saying that to condition the right
of counsel on one's requesting it would effectively deny it to
those who need it most — the ignorant, the inexperienced and
those of low income.
Addressing itself to the traditional presumption of innocence,
the court said that it was essential that the adversaries in
a proceeding be roughly equivalent; thus, the suspect should
not be made the instrument of his own conviction.
One of the leading rationales of the decision on procedural
safeguard warnings was a dissatisfaction with the traditional
"voluntariness test." Under this test, the court had to check
the facts of each case it received in order to determine whether
a confession was admissible. The difficulty with this type of
approach was the inability of the prosecution and the police
to agree with the defendant as to what had actually occurred
in the interrogation proceeding. Under Miranda, the courts now
are able to judge more easily whether a confession is admissible;
if certain rights are not properly tendered and knowingly and
intelligently waived, no confession can become evidence. The
Miranda decision does not, however, entirely eliminate the
credibility problem.^'* This inability to agree on the factual
aspects of the interrogation procedure was at the root of the
above-mentioned ACLU effort to have the presence of counsel a
requirement for any police interrrogation. The American Law
Institute has recommended the use of sound recordings "to help
eliminate factual disputes concerning what was said to the
arrested person and what prompted any incriminating questions
A pilot program is being conducted in New York City by the
Vera Institute of Criminal Justice using three methods of
corroboration: a lay observer, sound recording and videotape
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85
PROCEDURAL RIGHTS AND ISSUES
According to a New York commission:
[A] state constitutional requirement of sound recording,
or other methods of corroboration, of the interrogation
process would resolve many of the factual disputes
concerning what occurred in the stationhouse. °^
Because the Fifth Amendment has been applied to the states, all
state courts are bound by the Miranda decision. A state is free,
however, to develop its own procedural safeguards. A recent
Montana case^^ offers an example of a state effort to embellish
the type of standards imposed by Miranda. Although the case
does not center squarely on the police interrogation questions
of Miranda, it does contend that constitutional protections
against self-incrimination and the right of privacy are afforded
not only against violations by law enforcement officers but also
against violations of privacy and the right against self-
incrimination by private citizens. That is, a private citizen
can violate the constitutional rights of another in such a way
that reversible error can result if his testimony is admitted
as evidence. Specifically, admitting as evidence the testimony
of the defendant's sister-in-law as to an overheard telephone
conversation was held to be reversible error. ^^
In this case, a sheriff's testimoney citing a conversation with
the defendant was also admitted in the lower court. The conver-
sation was somewhat prejudicial and occurred prior to the defend-
ant being given Miranda-type warnings. The Montana Supreme Court
said "state's counsel should refrain from using statements made
prior to constitutional warnings except under unusual situations."
The court went on to cite the Miranda decision at length to
establish that the prohibition against the use of such statements
extended to statements which freed one from blame as well as those
which accused one and laid blame. The relevant part of Miranda
cited and emphasized by the Montana court noted:
[Sjtatements merely intended to be exculpatory by the
defendant are often used to impeach his testimony at
trial or to demonstrate untruths in the statement given
under interrogation and thus to prove guilt by impli-
cation. These statements are incriminating in any
meaningful sense of the word and may not be used without
the full warnings and effective waiver required for any
other statement. 89
Possible constitutional alternatives — to assure compliance with
the Miranda decision--for dealing with the inherent problems
of police interrrogation indued: (a) a requirement that a
suspect be given the Miranda warnings on the rights of silence
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PROCEDURAL RIGHTS AND ISSUES
and counsel by a magistrate; (b) a prohibition of police inter-
rogations unless counsel is present, and (c) explicitly guar-
anteeing the right of counsel at the time a person is taken
into custody. An additional requirement could require written
records or recordings of the warnings to, and the questioning
of, persons in custody.^"
In any case, whatever revisions are felt necessary to the
current provision on self-incrimination, one would want to be
certain that such protection was "as broad as the mischief
against which it seeks to guard. "^1
PROCEDURAL RIGHTS BRIEFS
This section covers procedural fairness requirements beyond the
central principles discussed above. One should keep in mind
throughout this discussion that:
American public law is deliberately weighted in favor
of defendants accused of crime. It gives the accused
almost every conceivable assurance that he will have
a fair trial. Indeed, our law is generally described
as a defendant's law, in contrast with other legal
systems which emphasize the necessities of the prose-
cution and give priority to the interests of society
in the apprehension and conviction of criminals. We,
too, are concerned with the suppression of crime, but
we are equally concerned with the necessities of
justice. 52
The principle reason for this orientation is that America no
longer has a private system of justice. Every criminal action
is a carefully regulated contest between the government,
attempting through the prosecutor to establish guilt, and the
accused, attempting to point out doubt and maintain his pre-
sumption of innocence. In this contest, government is clearly
the more powerful of the adversaries. Accordingly, procedural
safeguards are designed to redress this imbalance on the theory
that roughly equal adversaries make for fairer adjudication.
In addition, the point at which government proceeds against an
individual by picking him up, placing him under surveillance,
or alleging the commission of a crime constitutes a serious
step. At that point the person who feels the pressure of state
activity and stands in full view of a sometimes hostile public
temper is in instant trouble. As has been universally noted--
and this is especially true in agitated times like now — often-
times accusation is viewed as a clear sign of guilt. Auto-
matically , the accused stands apart from the mainstream of
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PROCEDURAL RIGHTS AND ISSUES
society branded by an accusation, protected only by a presvunption;
He may be imprisoned pending trial, unless he can
secure bail, if indeed he is eligible for bail. He
may lose his job, or be suspended from it, pending
trial. His reputation is under immediate cloud.
His family relationships may be irretrievably altered.
If he happens to be in a profession where good
reputation is peculiarly indispensable, he may suffer
grievously, though completely innocent. ^-^
As David Fellman goes on to say, "a defendant, in short, is
in a bad spot, merely by virtue of being one, and needs every
possible opportunity to establish his innocence, as soon, as
publicly, and as decisively as possible. "94 This commitment
to procedural fairness is not based upon an attitude that is
soft on violations of the law or unresponsive to the legitimate
claims of the victims of crime.
The purpose of the law is not to coddle wrongdoers.
It does not purport to multiply loopholes through
which evil men nay escape the consequences of their
offenses against society. The purpose of our public
law is to make certain, as nearly as the complexities
and perplexities of our world will permit, that the
truth will be discovered, and that justice will be
done. For with us justice is the great end of
government . . . Due process of law is not, primarily,
the right of the accused. It is basically the
community's assurance that prosecutors, judges, and
juries will behave properly, within rules distilled
from long centuries of concrete experience ....
[Ijn large measure justice is fair procedure. 95
The following discussion deals with several elements of fair
procedure: protection from excessive bail and undue pre-trial
detention, the right of indictment by a grand jury, the right
to know the nature and cause of the accusation, the right to
a speedy and public trial by an impartial jury in civil and
criminal cases, the right of counsel, the right of confrontation
and cross-examination and the availability of compulsory
processes for obtaining witnesses. Each is given expression
in scattered provisions throughout Montana's present Declara-
tion of Rights.
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PROCEDURAL RIGHTS AND ISSUES
Excessive Bail and Detention
The Montana Constitution contains two provisions relating to
bail. Article III, Section 20 provides: "Excessive bail shall
not be required . . . ." This provision is identical with the
federal Eighth Amendment. The Montana Constitution also goes
beyond the explicit wording of the federal document in Article
III, Section 19: "All persons shall be bailable by sufficient
sureties, except for capital offenses, when the proof is
evident or the presumption great."
The rights reflected in those provisions have deep historical
roots. The old English common law extended bail in all cases —
partly because of the costs and difficulties of detention. 96
Exceptions gradually were introduced until, by the mid-eighteenth
century, bail was not allowed wherever an offense was of very
substantial nature. This was at the time when there were in
excess of 160 capital crimes; thus, offenses which were bailable
were few and minor. In 1689, the English Bill of Rights announced
the principle that bail must be reasonable; in this enactment.
Parliament charged the ousted king with infringing the liberties
of citizens by denying reasonable bail. 5-''
There are very good reasons for allowing a person accused of
a crime to be free on reasonable bail. As stated by Chief
Justice Vinson in a 1951 Supreme Court case, "this traditional
right to freedom permits the unhampered preparation of a
defense." Further, "unless the right to bail before trial is
preserved, the presumption of innocence, secured only after
centuries of struggle, would lose its meaning. "98 Society may
be entitled to assure that the accused will be present at his
trial; however, if an accused is presumed innocent until con-
victed, he stands on the same footing as other citizens in
society and does not belong in jail. Another rationale, stated
in an old Supreme Court case, is:
The statutes of the United States have been framed
upon the theory that a person accused of crime shall
not, until he has been finally adjudged guilty in the
court of last resort, be absolutely compelled to
undergo imprisonment 'or punishment, but may be admitted
to bail, not only after arrest and before trial, but
after conviction and pending a writ of error. ^^
For these and other reaso'is, provisions on bail have found their
way into nearly every con;3titutional list of procedural safe-
guards. The Montana constitutional provisions are supplemented
by Title 9 5, Chapter 11 cf the Revised Codes of Montana, 1947.
/
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PROCEDURAL RIGHTS AND ISSUES
Included in these statues are provisions for the defendant's
release on his own recognizance, for overrriding the presumption
of entitlement to bail, for bail after conviction (largely
discretionary) , for determining the amount of bail and so on.
In addition to the sections cited above, the Montana Constitution
contains another provision prohibiting detention in the taking
of depositions. Article III, Section 17 provides:
No person shall be imprisoned for the purpose of
securing his testimony in any criminal proceeding
longer than may be necessary in order to take his
deposition. If he can give security for his appear-
ance at the time of trial, he shall be discharged
upon giving the same; if he cannot give security,
his deposition shall be taken in the manner pre-
scribed by law, and in the presence of the accused
and his counsel, or without their presence, if they
shall fail to attend the examination after reasonable
notice of time and place thereof. Any deposition
authorized by this section may be received as evi-
dence on the trial, if the witness shall be dead
or absent from the state.
This interesting safeguard has few parallels in other state
constitutions. As the section first reached the floor in the
1889 Convention, it provided that depositions were to be taken
in the presence of the accused and his counsel without exception.
Delegate Carpenter said the section "would amount to nothing"
in that version because "the accused can defeat it by simply not
appearing." Accordingly, he moved to add the provisions which
dealt with the taking of a deposition when the accused and his
counsel did not appear after reasonable notice. In addition,
his amendment contained the provision that depositions were
admissible as evidence. On this point there was some conflict. 100
Delegate J. K. Toole showed a concern with the potential of
this provision as a denial of the right of confrontation. He
said he considered the provision to be "the most dangerous
departure that has ever been made from the established principle
in courts of justice." Noting that such a provision might save
some money , he added :
tT]o take [a witness] . . . and incarcerate him in
prison is without authority under the [U.S.] con-
stitution .... [T]o say that under this provision
of the constitution, which guarantees these men the
right to meet these witnesses face to face, that you
may go off to the county jail, or elsewhere, and in
the presence of the two or three or four persons, and
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PROCEDURAL RIGHTS AND ISSUES
in the presence of the accused, take his deposition
which shall be brought into court and there used
against him instead of allowing him to meet the
witnesses face to face, is saying something, sir,
that was never intended by the constitution of the
United States, and which ought not to be permitted
under this Bill of Rights. 1^1
Toole was especially concerned that the accused should be able
to "look into the face of [the] witness and ascertain whether
or not he is telling the truth. "^^^ After considerable further
debate Delegate Carpenter's amendment was passed, 45-13. 1^-^
Still this doubt lingers: does the provision for taking a
deposition and submitting it as evidence mitigate against the
defendant's right to confront and cross-examine his Accusers
face-to-face in a situation where the jurors can judi^e the
credibility of the witness's testimony? Would, say, the use
of videotape for all depositions to be used as evidence obviate
this difficulty, or would the use of such a device run the risk
of turning the courtroom into a movie theater?
The Montana Supreme Court has had occasion to adjudicate some
issues raised on this provision. In 1909, the court held that
in the absence of an objection to the use of a deposition, it
would be presumed on appeal that the deposition was t'roperly
taken. ^'-'^ In addition, the court said that the right of the
accused to be present at the taking of a deposition is of the
class of rights which may be waived, that the burden of proving
that he was not present or that he was given no oppoirtunity to
be present rests with the defendant and that the officer taking
the deposition was not statutority required to keep a written
record of the proceeding. ■'•"^
More recently, the court considered the problem of whether the
taking of a deposition violated the defendant's right of con-
frontation as provided in Article III, Section 16 of the Montana
Constitution. The court held that a properly taken deposition
did not violate the right of confrontation. In announcing that
a prisoner seeking a writ of habeas corpus had the burden of
overriding a presumption that he had been tried legdlly, the
court said:
We are of the opinion that regardless of the words
of the objection, the matter of confrontation Was
before the court, and it properly allowed admission
of the depositions, for by petitioner's very act of
participating in the taking of the depositions, the
thoroughness of the cross-examination by petitioner's
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PROCEDURAL RIGHTS AND ISSUES
attorney negates any argument by petitioner that he
did not have the right of cross-examination of the
witnesses .
106
Statutory embellishments of this tool for the production of
evidence in criminal proceedings are in Chapter 18 of Title
95 of the Revised Codes of Montana, 1947. The rules for civil
procedure are in the Montana Rules of Civil Procedure, numbers
26-32.
Grand Jury
The federal Bill of Rights provisions on the grand jury are
a relatively unknown part of the Fifth Amendment:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the
Militia, when in actual service in time of War or
public danger ....
Based on the staying power of an eighty-eight year old U.S.
Supreme Court ruling, this part of the Fifth Amendment is not
binding upon the states; that is, it has not been incorporated
into the "due process" clause of the Fourteenth Amendment to
the U. S. Constitution. In the 1884 case, the Supreme Court
ruled that whether grand juries are an essential part of the
system of crim.inal justice is a matter of state constitutional
law, not federal law. Involved was a defendant charged with
murder in California without a grand jury indictment. Upon
being convicted and sentenced to death, he appealed contending
that the Fourteenth Amendment due process clause made a grand
jury an essential part of criminal trials. The court ruled
that it was not unfair for the state to dispense with such a
10 7
preliminary proceeding. ■'■^ '
It should be remembered that during this time, the Supreme
Court was not applying any of the federal Bill of Rights pro-
visions to the state; this case was only one of a series of
rulings in which the court refused to do so. In any event,
whether the court ever will see fit to require that the states
abide by the grand jury clause of the Fifth Amendment is in
doubt. Accordingly, in this area, state constitutional pro-
visions set minimum standards.
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PROCEDURAL RIGHTS AND ISSUES
The grand jury as an institution is a curious mixture of
libertarian and non-libertarian elements. On the one hand, it
is considered a safeguard against moving too fast against
someone suspected of a crime. Two juries--the grand jury prior
to indictment and the trial jury prior to conviction--must be
convinced of the suspect's guilt. On the other hand, rules
of evidence are different for the grand jury than for the
jury trial. Evidence of a kind that cannot be admitted in a
normal courtroom proceeding is admitted by grand juries. In
addition, a person indicted by a arand jury appears that much
closer to guilt after indictment . •'•^^
Ordinarily, a federal grand jury is composed of twenty-three
members, sitting either to investigate a particular person
suspected of a crime, or to investigate law-breaking in a
particular area over a long period of time. If the grand jury
is satisfied that there is "probable cause" that one has
committed a crime, it hands down an indictment. The person
indicted is brought to trial on the charges contained in the
indictment.
The 1889 Montana Constitutional Convention had difficulty
adopting the following provision now contained in Article III,
Section 8:
All criminal actions in the district court, except
those on appeal, shall be prosecuted by information,
after examination and commitment by a magistrate,
or after leave granted by the court, or shall be
prosecuted by indictment without such examination
or commitment, or without such leave of the court.
A grand jury shall consist of seven persons, of whom
five must concur to find an indictment. A grand
jury shall only be drawn and summoned when the
district judge shall, in his discretion, consider it
necessary, and shall so order.
The delegates to the 1889 Convention showed appreciation of the
testy balances involved in the legitimate use of the grand jury.
When Section 8 first reached the floor, it provided:
That, until otherwise provided by law, no person shall
for felony be proceeded against criminally, otherwise
than by indictment or information (and by information
in cases where the accused has been held to answer by
the committing magistrate) , except in cases arising
in the land or naval forces, or in the militia when
in actual service in times of war or public danger.
In all other cases, offenses shall be prosecutjsd
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PROCEDURAL RIGHTS AND ISSUES
criminally by indictment or information. A grand
jury may be drawn and summoned at any time when,
in the discretion of the district judges, it may
be necessary.
Delegate Clark, in moving to amend all mention of the grand
jury out of the provision, announced that his object "in making
this amendment is to abolish, absolutely and forever, the grand
jury system in the State of Montana." His statement was followed
by applause. Clark said that in all his years of service on
grand juries, most of the indictments were quashed. He went on
to call the use of the grand jury inquisitorial and criticized
the lax rules of evidence under which it operated. Applause
also followed when he said the grand jury was "a relic of the
dark ages" and that it was time for Montanans "to rise up in
their majesty and relegate it to the dark ages from whence it
II 109
came. "-^"^
Delegate Dixon then rose and proposed the wording currently
in the state Constitution, but the discussion of the matter was
only beginning. Delegate Burleigh supported abolition of the
grand jury, announcing:
I believe the time has come when a man should go
clothed in the full panoply of manhood and make his
complaint against the accused, and have him arrested
and held, and not any sixteen men in a secret
inquisition.
Delegate Robinson then spoke against abolishing the grand jury
entirely, urging that it had a valid limited use at the dis-
cretion of the district court judge. He said:
If we could have ideal prosecuting attorneys at all
times, then I would say wipe it from existence
entirely; but experience has taught us that we won't
at all times get men who are entirely independent
and free from the influence of friends or power,
or a fear, sometimes, of cliques .... Through the
influences of these men prosecuting attorneys might
not at all times do their duty .... It is a question
for the consideration of this Convention, whether it
would not be wiser to retain [it to the] limited
extent . . . [proposed by delegate Dixon). I am
rather . . . inclined to support that proposition, and
not to abolish the system entirely, but to retain it
to that limited extent . . . .110
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PROCEDURAL RIGHTS AND ISSUES
Delegate Clark then spoke mockingly of Delgate Robinson's
contention that the grand jury could be used to investigate
public officials. Clark said that he had seen some of those
public records examinations:
(T]he last day before the grand jury adjourns,
they appoint a committee to go and visit the
Treasurer's office; another committee will go
down to the Clerk and Recorder's office, to see
that he has not been derelict during the past year
. . . . These gentlemen go down and see the
Treasurer and Clerk, who sometimes have a box
of cigars, the boys are treated, and they go off
feeling satisfied .... [T]he idea of their
making an examination such as ought to be made
is little short of preposterous . H^
During further debate. Delegate Marshall referred to the safe-
guarding aspects of the grand jury as they were understood by
the draftsmen of the U.S. Constitution:
[I]t seems to me, not only for the protection of
the citizen, but for the protection of the country,
and the punishment of offenses, that the grand
jury is a good thing. And I do not believe . . .
that it is a relic of the barbarous ages. It was
required by our forefathers to be put in the
Constitution of the United States, because they
believed it was a protection of the citizen. ^^
After considerable further debate, the grand jury provisions
were passed in the present form. Final passage was secured
with only a minor scuffle. ^^^
As noted by an old line of Montana State Supreme Court cases,
one of the principal reasons for adopting Section 8 was to do
away with the machinery and expense of a grand jury by providing
for prosecution by information. H^ In an 1895 case the court
first announced this notion; in doing so, it also pointed to
the
two methods of procedure . . . indispensible where an
information is filed, -- either there must have been
an examination and commitment, or there must have been
leave of court provided. But both steps are not re-
quired .... We think, too, that the rights of a
defendant are guarded, no matter what procedure is
followed. 115
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PROCEDURAL RIGHTS AND ISSUES
From these cases and the above debates, it can be seen that
these grand jury provisions are designed to provide for its
limited use in the state. Statutory embellishments of the
grand jury can be found in Title 95, Chapter 14 of the Revised
Codes of riontana, 1947.
Nature and Cause of Accusation
The Montana Constitution contains in Article III, Section 16
provisions guaranteeing the right of a criminal accused to
know the nature and cause of his accusation: "In all criminal
prosecutions the accused shall have the right ... to demand
the nature and cause of the accusation . . . ." This provision
also is found in the Sixth Amendment to the U.S. Constitution.
According to one commentator, "the indispensible, classic
minimum requirement of due process is that one who is charged
with having committed a crime be given adequate notice of his
alleged offense and a fair hearing or trial. "^-^^
This concept is one of the lessons learned from the bad example
of English practice, rather than the more typical practice of
following English constitutional history. It is designed to
allow the defendant to know in advance the precise nature of the
accusation on which he will be tried. This is to insure that
the trial remains an effort to inquire into closely defined
questions of fact. If a defendant were not aware of the specific
nature of his alleged offense, he v;ould be ill-prepared to
defend himself. Whether an accusation provides the necessary
notice to the defendant hinges on v;hether it
sufficiently apprises the defendant of what he must
be prepared to meet, and, in case any other proceedings
are taken against him for a similar offense, whether
the record shows with accuracy to what extent he may
plead a former acquittal or conviction. ^^^
The Montana Supreme Court has had several occasions to adju-
dicate on this provision. In a 1919 case, it can be seen how
difficult it may be to decide how specific an information must
be to constitute proper notification of the defendant. In
State V. Wolf,^^^ during a time when courts were especially
impatient with World War I dissenters, the court held that a
man faced with a sedition charge needed to be apprised of the
specific language he used in the alleged seditious utterances.
A general accusation that Wolf had used language "calculated to
bring the soldiers of the United States and the uniform of the
army of the United States into contempt, scorn, contumely and
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disrepute" was not sufficient. In ordering him freed, the
court said:
The constitutional and statutory guarantees hereto-
fore adverted to, requiring direct and certain
allegations in criminal pleadings, are merely
declaratory of the ancient common-law rule that no
one shall be held to andswe an information or
indictment, unless the crime be charged with precision
and fullness, to the end that the defendant may have
ample opportunity to make his defense and avail
himself of his conviction or acquittal in a subsequent
proceeding for the same offense. Further than that,
it is essential that the particular offense be
adequately identified and charged in such a manher
as to enable the court to determine its sufficifency
in law to constitute the offense prohibited by the
statute .... The information is therefore defective
in failing to set out the particular circumstaribes
necessary to constitute a complete offense ....
The defendant is ordered discharged from custody. ^^^
Trial By Jury
The famed section 39 of the Magna Carta stated:
[N]o free man shall be taken or imprisoned or
dispossessed, or outlawed, or banished, or in
any way destroyed, nor will we go upon him, nor
send upon him, except by the legal judgment of
his peers or by the law of the land.
This demand is based on one of the oldest principles of English
law: that a man who is to be judged should be judged by his
equals. For example, a noble should not be judged by a vassal
and vice versa.
This right has a Continental heritage dating back much earlier
than King John's reluctant acceptance of the Magna Carta.
Ancient forms of trial such as trial by battle, by ordeal or
other forms of proof gave way to the importance of one particula:
form of trial, the trial by jury. This development is reflected
in the Magna Carta; so inextricably have the two become inter-
twined that American constitutional law has come to equate
trial by jury with the guarantees of the Magna Carta.
120
During the seventeenth century when the first permanent settle-
ments were made in the New World, trial by jury was very
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PROCEDURAL RIGHTS AND ISSUES
popular in England. On the theory that local jury trials were
a solid defense of popular liberties, the colonists rapidly
accepted the institution. Accordingly, colonists would not
acquiesce in the practice of removing colonial defendants to
England for trial.
At the same time, in England there was heightened opposition
to the arbitrary actions of judges who served at the pleasure
of the crown. Efforts were made to strengthen the powers of
juries, giving them authority to decide the law and the facts.
This concern diminished in the early eighteenth century when
the tenure of judges was changed to life or good behavior. ^21
The American dedication to trial by jury is reflected in the
fact that the institution was written into many colonial statutes
and all of the early state constitutions. Unlike those rights
eventually appended to the federal Constitution as the Bill of
Rights, trial by jury was incorporated into the body of the
Constitution itself by the 1787 Convention. Article III,
Section 2 of that document provides:
The trial of all crimes, except in cases of impeach-
ment, shall be by jury; and such trial shall be held
in the state where the said crime shall have been
committed.
That even this proposition was felt inadequate is indicated by
the fact that the Sixth Amendment to the Constitution also
guarantees the right:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the state and district wherein
the crime shall have been committed.
The federal Seventh Amendment provides for jury trials in
civil cases:
In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury
shall be otherwise reexamined in any court of the
United States than according to the rules of common law.
The most famous interpretation of the right to a jury trial was
offered by the U.S. Supreme Court in 1929. The court ruled that
a trial by jury has meaning "as understood and applied at
common law, and includes all the essential elements as they were
recognized in this country and England when the Constitution was
adopted . . . ."122 r^^^^ court went on to say:
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Those elements were — (1) that the jury should consist
of twelve men, neither more nor less; (2) that the
trial should be in the presence and under the super-
intendence of a judge having power to instruct them
as to the law and advise them in respect of the facts;
and (3) that the verdict should be unanimous . ^23
In 196 8, the Supreme Court applied this requirement to the states
by incorporating the right to a jury trial in criminal cases
into the Fourteenth ilmendment .124 j^ doing so, the court said
that the right was among those "fundamental principles of liberty
and justice which lie at the base of all our civil and political
institutions," that it was "basic to our system of jurisprudence"
and that it was "a fundamental right, essential to a fair
trial . . . ."125
The court stated:
The claim before us is that the right to trial by jury
guaranteed by the Sixth Amendment meets these tests.
The position of Louisiana, on the other hand, is that
the Constitution imposes upon the states no duty to
give a jury trial in any criminal case, regardless of
the seriousness of the crime or the size of the punish-
ment which may be imposed. Because we believe that
trial by jury in criminal cases is fundamental to the
American scheme of justice, we hold that the Fourteenth
Amendment guarantees a right of jury trial in all
criminal cases which--were they to be tried in a federal
court--would come within the Sixth /Amendment's guarantee. 126
Since the court has not yet incorporated the Seventh Amendment
right to a trial by jury in civil cases into the Fourteenth
Amendment, the states remain the prime guarantors of this right.
The Montana Constitution in Article III, Section 16, contains
the right to a "speedy public trial by an impartial jury of
the county or district in which the offense is alleged to have
been committed." Article III, Section 23 speaks more directly
to the trial by jury safeguard:
The right of trial by jury shall be secured to all,
and remain inviolate, but in all civil cases and in
all criminal cases not amounting to felony, upon
default of appearance, or by consent of the parties
expressed in such manner as the law may prescribe,
a trial by jury may be waived, or a trial had by any
less number of jurors than the number provided by law.
A jury in a justice's court, both in civil cases and
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in cases of criminal misdeamonor , shall consist of
not more than six persons. In all civil actions and
in all criminal cases not amounting to felony, two-
thirds in number of the jury may render a verdict,
and such verdict so rendered shall have the same
force and effect as if all such jury concurred therein.
The Montana Supreme Court has decided a number of cases under
these provisions. Under the "impartial jury" provisions of
Section 16, for example, the court in 1903 said:
By the Constitution of this state, one accused of
crime is guaranteed the right to "a speedy public
trial by an impartial jury of the county or district
in which the offense is alleged to have been com-
mitted." An impartial jury must be composed of
twelve impartial men. A number less than that will
not suffice. If one of the jurors is incompetent
because of actual bias entertained by him against
the accused, and conceals such incompetency on his
voir dire, this vitiates the jury as a whole. The
accused being entitled to a jury of twelve impartial
men, if he has but eleven, while the twelfth is
hostile to him, he has not the impartial jury which
the constitution and laws contemplate that he shall
have. 127
In general, the Montana Supreme Court has given considerable
latitude to lower trial courts in challenges involving the
alleged bias of jurors after completion of proceedings. This
has even been true in cases where the juror admits that it will
take evidence to overturn his opinion of the defendant's guilt. 1^8
The same general reluctance on the part of the court is appar-
ently true in cases where the defendant requests a change of
venue. In a 1970 case, 129 the court said:
A clear abuse of discretion by the district judge
in denying a change of venue is required to support
reversal of his denial .... We find no abuse of
discretion in Judge Duncan's denial of defendant's
initial motion for a change of venue. 1-^^
In both situations--especially the defendant's challenge to
jurors for bias--the issues clearly affect the defendant's
presumption of innocence. In cases where a juror announces
that it will take evidence to convince him that the defendant
is innocent and the court accepts this as impartiality, the
presumption of the defendant's innocence has been overcome. 1^1
Perhaps the same is true where the defendant's application for
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change of venue must show "clear abuse" to obtain reversal. As
previously noted, the Montana Constitution contains no statement
of the presumption of innocence, although all courts supposedly
are bound to observe it.
The court also has made a number of decisions under Article
III, Section 23. For example, in 1904, the court announced that
the right of trial by jury in civil cases was mandatory and
did not hinge on the request by one party to an action for
such a trial. In addition, the court specified the only manner
for waiving a jury trial was that specifically prescribed by
law. 132 Since that time the laws relating to waiver of jury
trial in civil cases have changed and one who does not demand
a jury trial in civil cases is presumed to have waived the
right [Montana Rules of Civil Procedure, Rule 38(d)].
Speedy and Public Remedy
The Montana Constitution (Art. Ill, Sec. 16] contains a state-
ment of the right of an accused to a speedy and public remedy:
"In all criminal prosecutions, the accused shall have the right
to ... a speedy, public trial . . . ." This commonplace
wording of the defendant's right to a speedy remedy also is
found in the Sixth Amendment to the U.S. Constitution. Although
the expression of the right, recently applied to the states,
if fairly common, its boundaries are yet unclear. 1^3
In general, there are two distinct types of efforts to implement
this right. One is exemplified by Rule 48(b) of the Federal
Rules of Criminal Procedure:
If there is unnecessary delay in presenting the charge
to a grand jury or in filing an information against a
defendant who has been held to answer to the circuit
court, or if there is unnecessary delay in bringing a
defendant to trial, the court may dismiss the indict-
ment, information or complaint.
This seemingly systematic effort to be obscure is in contra-
diction to the other type of implementation which compels
prosecution within a certain specified length of time. An
example of this type of provision can be found in the early
territorial statute (now repealed) on speedy remedy. The
Bannack Statutes contained a provision guaranteeing a speedy
remedy as follows:
If any person indicted for any offence . . . shall
not be brought to trial before the end of the third
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PROCEDURAL RIGHTS AND ISSUES
term of the court in which the cause is pending . . .
he shall be entitled to be discharged . . . .^^^
The newly adopted Montana criminal procedure revisions effected
an open provision in cases of motions for continuance which
reads: "This section shall be construed to the end that
criminal cases are tried with due diligence consonant with
the rights of the defendant and the state to speedy trial"
[Revised Codes of Montana, 1947, Sec. 95-1708 (d) ] . It is not
clear whence this state right to a speedy trial was derived.
This provision replaced a specific guarantee of the defendant's
right to remedy within six months of the filing of an information.
The state courts had occasion to interpret this section [94-9501]
of the Codes before it was repealed. For example, in State
ex rel. Thomas v. District Court, the court ruled that in deter-
mining the number of days the trial had been delayed, only days
of delay not caused by the defendant would be counted. Specif-
ically, the court held that even though more than six months had
elapsed since the filing of the information, less than six months
of that delay was not caused by the defendant; therefore, there
was no violation of the speedy trial provisions . •'-^^
Interestingly, a proposed specific limitation on the time period
after which a defendant must be released is contained in a draft
declaration of rights done as a class project by a group of
Helena High School students. The section, dealing with "legal
rights" such as due process and fair treatment before legislative
and executive investigations, reads in part: "and that right
and justice shall be administered without sale and denial within
one year of the occurence." This is perhaps indicative of an
unascertained level of public alarm at the length of accusatorial
and investigatory proceedings.
The second half of the "speedy and public remedy" proposition is
the right to a public trial. This right also is part of the
federal Bill of Rights Sixth Amendment; it has been applied to
the states through the due process clause of the Fourteenth
Amendment. 136 one commentator, v;riting on the presence of the
press at highly publicized trials, has said "there is no con-
stitutional compulsion to make special efforts on behalf of the
news media. A right to a public trial is . . . the defendant's."
Whether or not this commentator is guilty of mistaken emphasis
in an effort to grind an axe with the press, the point is that
the right is accorded the defendant in order to provide exposure
to the adequacy of proceedings against him. 137 p^j^ example of
the operation of this principle can be seen in the 1916 Montana
case, State v. Keeler. In this case — a prosecution for rape--
the court ordered that on account of the nature of the case no
one should be allowed into the courtroom in addition to those
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then present, and those present, after once leaving, could not
return. Court officers, doctors, attorneys and newspapermen
were excluded from the order. The defense had protested the
issuance of the order but was overruled. However, the Supreme
Court held that such an order was a denial of the defendant's
right to a public trial saying:
The Constitution declares that in all criminal
prosecutions the accused shall have the right to
a public trial (Section 16, Article III). Just
whdt is meant by a public trial has been the sub-
ject of some discussion; but, with a single excep-
tion, we undertake to say that no court of last
resort in this country has ever sustained an
order of the character of the one before us, when
timely objection to it was interposed. 138
In dissent on this point. Justice Sanner, stating that this
right was not an absolute, argued that the courts were
under no obligation whatsoever to become centers
of moral infection in order that the trial may be
said to be public, any more than they rest under
the obligation to make extraordinary efforts to
take up the trial in order that it may be said to
be speedy .... This provision . . . had its
origin in an age when stenographers were unknown;
when newspapers were few and under restrictions.
The abuses of secret or "star chamber" proceedings
conducted for political ends caused its formulation,
and its object is to prevent a recurrence of such
abuses . ^-^^
In general, suggestions for reform in this area are of a
statutory nature. However, one possible constitutional
alternative would be to stipulate against "unnecessary" delay
(as does the current statute) and, in addition, set a time
limit beyond which a defendant could not be prosecuted.
Right of Counsel
In 1696 in England, the Trial of Treasons Act was passed. This
act developed the limitation that in order to convict a person
of treason, there had to be two witnesses to the same overt
act. More important, it announced the the defendant had the
right to be represented by counsel. Although it was not until
1836 that English law guaranteed the right of counsel in all
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PROCEDURAL RIGHTS AND ISSUES
cases, the Trail of Treasons Act was a step in that direction.
Prior to that time, the rights of persons accused were restricted
by a niomber of rules designed to aid the prosecution of alleged
traitors and other lawbreakers. The accused could be held in
solitary confinement with no chance to prepare his defense,
contact witnesses in his favor or confront his accusers. In
addition, rules of evidence were not well-settled. Curiously
enough, as noted by Emilie Loring:
[C]ounsel was permitted to appear in civil cases and
in misdemeanor cases which, apparently, were too
trivial for the state to be overly concerned with
convictions. In cases involving major crimes it was
assumed that the state could not bring the charge
unless the defendant were guilty. An attorney, there-
fore, was an unnecessary complication . . . .140
This is no longer the case, counsel being considered an essential
aspect of due process of law.
The gradual growth of the right of counsel on the national level
is indicative of the value of having a set of guarantees at the
state level similar to those at the federal level (assuming the
state were vigorous in enforcing the guarantee) . The federal
Sixth Amendment protection of the right of counsel was secured
in federal prosecutions by congressional action and judicial
decisions. However, as a result of such decisions as Barron
v. Baltimore, -^^-^ which argued that the federal Bill of Rights
guarantees were not binding on the states , the states could
establish their own provisions for the right of counsel.
This situation held until 1932 when the first of the famous
Scottsboro cases was decided. Nine blacks had been arrested
and charged with the rape of two white girls in Alabama. The
crime carried the death penalty. When arraigned, all pleaded
not guilty. In setting up the subsequent trial, the judge did
not ask the defendants whether they desired to employ counsel
or if they wished to contact someone to obtain counsel for them;
he simply appointed members of the local bar to handle the case.
When the first trial began, only a week later, no counsel
appeared and there was no evidence that anyone had prepared the
defense. The local bar finally accepted the assignment and
reluctantly prepared defenses. All nine blacks subsequently
were convicted and sentenced to death. The state supreme court
upheld the convictions. However, the U.S. Supreme Court reversed
the first case to reach it. In doing so, the court held that
the peculiar manner in which the defendant was effectively denied
counsel offended the due process clause of the Fourteenth
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PROCEDURAL RIGHTS AND ISSUES
Amendment. The court also ruled that the right to be heard in
court was of little value if it did not include the right to be
heard by counsel. The court noted the youth of the defendants,
the obvious public hostility toward their case, their detention
incommunicado while awaiting trial and the fact that their
alleged crime was a capital offense as attendant circumstances
which furthered the need for representation by competent counsel. ■'^^
Until 1963, this ruling was held applicable only to the special
circumstances of the case. In 1942, for example, the court again
faced the issue and held that the due process clause of the
Fourteenth Amendment did not automatically apply the specific
guarantee of the Sixth Amendment to the states. Basically, the
court was arguing that the denial of the right of counsel did not
necessarily indicate an unfair trial unless there were attendant
circumstances. This put the court in the position of a case-by-
case determination of violations of the right. ^^^
Finally, in 1963, the court abandoned this special circumstances
rule. In Gideon v. Wainwright , ^^^ the court made it clear that
the right of counsel was essential enough to make it a part of
due process and therefore binding on the states. The same day
the court held that the right of counsel also extends to the
first appeal in a criminal case; to say that the indigent has
only one chance to vindicate himself was, according to the court,
to draw "an unconstitutional line . . . between rich and poor."-^'*^
Since that time the court also held that the Gideon interpretation
of the right of counsel applies retroactively. ^^^
The Montana Supreme Court also has had occasion to rule on the
extent of the right of counsel. For example, in 19 57 in State
V. Dlakeslee, the court said:
The defendent may be as guilty as every felon not
hanged. He is nevertheless entitled to a trial
consistent with our Constitution and Codes ....
Specifically, he is guaranteed counsel by appoint-
ment of the court, if he cannot himself employ an
attorney. If then the court recognizes this right
as were the case here, it is equally the duty of the
Court to make the appointment of counsel effective,
i.e., to give court-appointed counsel a reasonable
time for the preparation of his case after he has
been appointed. ■'■''^
Another case, decided in 1929, dealt with the right of person
incarcerated to consult privately with counsel about matters not
related to the case pending against him. The court, in deciding
the person did not have such a right under Article III, Section
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PROCEDURAL RIGHTS AND ISSUES
16 of the Montana Constitution, announced that such a right was
guaranteed by Section 8990 of the Revised Codes of Montana,
1923.148 This section (currently 93-2717 of the Revised Codes
of 1947) provides:
All public officials, sheriffs, coroner, jailers,
constaoles, or other officers or persons, having in
custody any person committed, imprisoned, or restrained
of his liberty, or any alleged cause whatever, must
admit any practicing attorney and counselor at law in
this state, whom such person restrained of his liberty
may desire to see or consult, to see and consult such
person so imprisoned, alone and in private, at the jail
or other place of custody ....
This section goes on to specify a fine of $100 to be paid to
the aggrieved for any violation of this right. In applying the
statute to permit one incarcerated to see an attorney, the
court also specified:
[T]he right to consult depends upon legitimate
business to be transacted, not upon a mere desire
to visit the prisoner, and the reasonableness of
the arrangement made in each case depends largely
upon the nature and extent of the business to be
transacted . ^^^
Recent court activity on the subject of the right of counsel
deals with questions of the effectiveness of counsel — especially
court-appointed counsel. A 1963 Montana case indicates some
criteria which may be used to argue a denial of due process for
lack of effective counsel. In State v. Noller, the court said:
The handling of the defense by counsel of the accused's
own choice will not be declared inadequate except in
those rare cases where his counsel displays such a lack
of diligence and competence as to reduce the trial to
a "farce or a sham. "^50
Of a possible distinction between the degree of scrutiny of
court-appointed counsel and counsel retained at the defendant's
choice, the court said:
Evidently this distinction, if any there is, between
cases involving representation by retained or court
appointed counsel, has been ignored in applying the
aforementioned rule. We point this out, not to infer
that we will make any distinction, but because we do
not wish to appear that we rely on a rule that has been
stated solely in cases involving retained counsel. 1^1
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PROCEDURAL RIGHTS AND ISSUES
The court went on in a tone markedly different from that of the
previously cited Blakeslee decision, saying:
We cannot say that defendant did not have adequate
representation in the court below. A readina of the
testimony convinces one beyond any reasonable doubt
of what might be termed as "open and shut" case. Just
what any defense counsel, faced with such evidence,
could do is highly speculative. ^52
Beyond the fact that the state court is perhaps in no position
to judge how little counsel might do for even the most guilty
defendant, a possible question derived from this type of reasoning
is whether the court should more carefully scrutinize a claim
of inadequate representation when it comes from a defendant with
court-appointed counsel. Such is a matter of increasing concern,
the issue being the entitlement of one who cannot afford counsel
to as effective counsel as one who can afford to select his own.
Perhaps if an indigent could dismiss court-appointed counsel
until he was appointed counsel who could adequately present his
case, the presumption of innocence would be strengthened. In
any case, it is easy to see that one who has counsel appointed
to represent him at typically low fees might not be effectively
represented, even if such representation did not reduce the trial
to a "farce or a sham." It should be noted that under the
provisions of Article III, Section 16 of the Montana Constitution,
one also is guaranteed the right to represent himself if he
chooses.
The Right of Confrontation
"The rights of an accused to confront and cross-examine adverse
witnesses are a basic aspect of the American judicial process ." •'■^
The safeguard of the right is found in the Sixth Amendment to
the U.S. Constitution: "In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him . . . ." Article III, Section 16 of the Montana
Constitution also declares the right: "In all criminal prose-
cutions the accused shall have the right ... to meet the
witnesses against him face to face . . . ." According to David
Fellman, this type of provision "is no more than a restatement
of a very old common law rule dating from around 1600."-^^^
The principal design of this provision is to permit the defendant
to cross-examine his accusers and to question their credibility . ■*•
One of the most difficult aspects of the entire accusatorial
procedure is determining the value of testimony that is given
by various witnesses. In a system which places emphasis on the
innocence of the accused, the testimony of his accusers is of
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PROCEDURAL RIGHTS AND ISSUES
considerable importance. Under this right of confrontation the
accused has the opportunity to publicly test the utterances of
his accusers in order to aid the jury in determining the quality
of their testimony. In addition, the physical appearance of
the witness "enables the judge and jury to obtain the elusive
and incommunicable evidence of a witness's conduct while testi-
fying. "^^^ Various behavior patterns can indicate to the jury
what a literal statement cannot. The Montana Supreme Court,
ruling on Article III, Section 16 in State v. Storm in 1953, held:
It was error for the trial court to allow the testimony
of a witness at the first trial to be read into evidence
at the second trial. It was the right of the defendant
to have the jury see and observe the witness upon the
witness stand. It was his right that the jury see how
the witness acted under direct and cross-examination.
It was his right to have the jury judge the credibility
of the witness from his appearance and manner while on
the witness stand. None of these rights could be had
except and unless the witness met the defendant "face
to face" in the presence of the jury during the course
of the trial. 1^'
The right of confrontation has been incorporated into the
Fourteenth Amendment of the U.S. Constitution and is, therefore,
applicable as a bar to state infringement. In Pointer v. Texas,
the U.S. Supreme Court held that the right would be "enforced
against the state under the Fourteenth Amendment according to
the same standards that protect those personal rights against
federal encroachment. " 1^°
An earlier Supreme Court decision gave shape to the right of
confrontation. ^^^ In 1899, the court declared unconstitutional
a Congressional enactment that a conviction of a person for the
theft of government property was conclusive evidence that the
property was stolen or purloined, against anyone who had
received the property. In deciding this case, the court noted
that the defendant was not confronted with witnesses against
him; all he was confronted with was only "the record of another
criminal prosecution with which he had no connection . . . ."160
The court went on to say:
[A] fact which can be primarily established only by
witnesses cannot be proved against an accused . . .
except by witnesses who confront him at the trial,
upon whom he can look while being tried, whom he
is entitled to cross-examine, and whose testimony he
may impeach in every mode authorized by the estab-
lished rules governing the trial or conduct of
criminal cases. The presumption of the innocence of
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PROCEDURAL RIGHTS AND ISSUES
the accused attends him throughout the trial and
has relation to every fact that must be established
in order to prove his guilt beyond reasonable doubt. ^^^
The right of confrontation is part of such a presumption. As
noted above, there is a potential conflict between this right
and the detention provisions of Article III, Section 17.
The rights of confrontation and cross-examination are among
those suggested for extension to administrative hearings and
legislative investigations (see essay on saf egauarding rights
in administrative procedure, below) .
Compulsory Processes for Obtaining Witnesses
The Montana Constitution also contains a provision giving a
defendant the right to compel witnesses in his behalf to attend
any criminal proceedings against him. This is guaranteed in
Article III, Section 16: "In all criminal prosecutions, the
accused shall have the right ... to have process to compel
the attendance of witnesses in his behalf . . . ." There is
little debate over this provision which assures that the defend-
ant can secure testimony in a manner similar to that of the
prosecution. Special statutory implementation of this right
was reaffirmed in the criminal procedure revision of 1965-^°^
and now is found in Section 9 5-1801 of the Revised Codes of
Montana, 19 47, under the general heading, "Subpoenas." It pro-
vides that upon the request of the prosecuting attorney, the
defendant or his attorney, the court shall issue subpoenas.
Subparagraph (1) of Section 95-1801 (d) , in permitting the court
to subpoena for "good cause" books, statements, papers, etc.,
for the inspection by the parties and their attorneys prior to
the trial, authorizes what the Criminal Procedure Commission
admits is a "fishing expedition" when applied to third parties
only. Subparagraph (2) grants the defense access to documents
which the prosecution may have obtained from the defendant prior
to the trial.
In general, the compulsory process provision of Article III,
Section 16 is an effort to assure the assemblance of all
evidence important to sustain the adversay nature of a criminal
proceeding and is subject to no controversy.
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PROCLUURAL RIGHTS AND ISSUES
CONCLUSION OF FUNDAT-IENTAL PROCEDURAL RIGHTS
In conclusion, it can accurately be said:
lN]o period of our history since the adoption of the
Bill of Rights can equal the last decade in the scope,
rapidity, and intensity of the changes in the law of
criminal procedure. The rights of defendants in
both federal and state courts have been greatly
enlarged. ^^-^
The rash of concern over these changes, especially those an-
nounced by the U.S. Supreme Court, should not obscure their
significance. One commentator, a justice of the California
Supreme Court, has noted a cry has been raised that the
decisions--such as the Miranda one on confessions--suggest an
attitude that is "soft" on criminals. In reply, he cites
impressive statistics indicating that the conviction rate does
not depend upon the extended use of such constitutional safe-
guards, and concludes:
[Djespite the public clamor, the enforcement of
constitutional protections in this instance does
not preclude the enforcement of the criminal law
itself. That fact, however, does not lessen the
opposition of the courts in their task of strength-
ening the constitutional rights of the individual
in this tightening modern society. ^^^
In addition, many of the reforms have come about through legis-
lative enactment. Two examples are the federal Criminal
Justice Act of 1964, which helped the indigent defendant be
more certain of an adequate defense, and the Bail Reform Act
of 1966, which eased the restrictions on pretrial releases. ^^^
State law has also played a part in this revision, a notable
example being the recent revision of the Montana criminal
procedure statutes.
In any case, it is crucial, as one commentator has noted, to
avoid the tendency to choose sides and to support or reject the
Supreme Court decision as if the matter ended there. What is
important is that "the attempt to articulate and enforce a
system of justice" be carried on and that the state courts bear
tneir share in this effort. ^^^ To be certain that the base for
this system of justice is sound is the task confronting the
Constitutional Convention.
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PROCEDURAL RIGHTS AND ISSUES
INCARCERATION AND THE ADMINISTRATION OF CRIMINAL JUSTICE
Laws for the punishment of crime shall be founded
on the principles of reformation and prevention,
but this shall not affect the power of the legis-
lative assembly to provide for punishing offenses
by death. [Montana Const. Art. Ill, Sec. 24]
Introduction
According to Elbert F. Allen, writing on the sources of the
Montana Constitution, there was no discernible precedent for
this section of the state Declaration of Rights. He says that
Article III, Section 24 was "simply an embodiment into the
constitution of [a] principle of common law."-'-"' There was a
provision of this sort in the New Hcimpshire Bill of Rights of
1784. It provided that penalties should be "proportioned to
the nature of the offense . . . the true design of all pionish-
ment being to reform not to exterminate, mankind. " -^^^
The 1889 Proceedings shed little light on the source of the
provision; it is highly unlikely that the delegates were aware
of the New Hampshire declaration on this point. When the
provision v/as read before the Convention, Delegate Durfee of
Deer Lodge promptly moved that it be stricken saying, "I do
not see that it means anything ." ^^^ In response. Delegate
Knowles said the provision meant "a good deal."
It means that the punishment for crime shall be with
the view of reforming the criminal, and with the view
to prevent it in the future, his committing the same
crime . . . [I Instead of incarcerating him simply as a
punishment, without any other object in view than to
simply punish a man in a kind of spirit of revenge,
he is put there for the purpose of reformation and
prevention .... The idea is that the punishment
shall be somewhat with a view to reform the man, making
him a better man, and especially in relation to our
penitentiaries and institutions where men are confined
who are to be punished for crime, that they shall have
a tendency to make men better. ^^^
After Delegate Durfee responded that such a provision "would
be simply superfluous and lumbering up the Constitution without
any purpose, "1^1 Delegate Bickford rose to defend the provision,
He admitted that the bill of rights committee was not certain
that the provision meant anything. He then proceeded to say
what he thought meant:
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PROCEDURAL RIGHTS AND ISSUES
Inasmuch as this is simply a declaration of principles,
we thought it well to put the exception in there as
a declaration of the people of this Territory, showing
the ground upon which we punish crime--not, as Judge
Knowles has well said, in a vindictive spirit, but in
a spirit of prevention, and for the purpose of preventing
the recurrence of the Seine crime, and that, as a
civilized nation, we had some respect and something in
common with the rest of the world. We want them to
understand the principles upon which we base our laws.
This is one of the progressive ideas of our present
civilization, and one of the ideas which perhaps will
shine as brightly in the years to come as any other —
that our laws are based upon principles of humanity
and not upon the principles of revenge. 1^2
Delegate Durfee's motion to strike the provision was defeated
and, in later session, the provision was adopted, with the added
stipulation that the provision would not affect the power of the
legislature to pass laws providing for capital punishment. 1^^
Two recent studies of the Montana Constitution voiced minor
complaints about the rehabilitation provision. The Montana
Legislative Council noted that "only one of the six constitu-
tions used for comparative purposes has a similar provision.
Although this section may have little, if any, force, the
Council concludes that it is adequate. " -^^^ In a similar vein
the Constitution Revision Commission subcommittee stated that
"this section may have little if any force. The subcommittee
feels that the section is unnecessary, but does not recommend
deletion. " ^^^
One might question the reasoning of these two assessments. For
example, if the provision has little force, in what sense may
it be said it is adequate? Why does it have little force? And,
if it is unnecessary why not delete it? That aside, there is
considerable indication that the principle expressed by the
provision is not dead letter on the law and is still at issue.
Especially in the area of civil liberties, a rash of material
has been written concerning the substantive and procedural
rights of persons subject to detention or even death subsequent
to conviction for the commission of various crimes. A brief
exploration follows of three of these issue-areas that have
received most attention: the rights of prisoners, the restora-
tion of rights to convicted felons who have completed their
sentence and the capital punishment question.
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PROCEDURAL RIGHTS AND ISSUES
The Rights of Prisoners
Various groups in society do not enjoy the full protection
of all the provisions of the Constitution. Persons in the
military, persons who are mentally ill, and, under certain
circumstances, persons under the age of majority do not have
the complete protection. The U. S. Supreme Court, in cases
questioning the denial of certain rights, has held that all
these persons are entitled to all the rights enjoyed by
others to the fullest extent possible. 176
The court also has ruled specifically that prisoners are
entitled to rights on the same basis, subject only to such
modification as is necessary because of their status. 177
That the denial of rights of prisoners is still at issue is
indicated by the recent action of a three-judge panel of the
Philadelphia Court of Common Pleas, which declared that
sentencing anyone to Holmesburg Prison would violate the
U. S. Constitution's Eighth Amendment forbiding cruel and
unusual punishments. This decision was upheld by the
Pennsylvania Supreme Court, which said in dictum: "Many of
the prisons today are filthy, unhealthy, oppressive and
often shocking, and for various reasons, the safety and
security of many inmates are sometimes in jeopardy .'' 178
That such a decision is not an isolated instance is
indicated by the fact that state and federal courts in
Florida, West Virginia, California and Illinois have held
various penal institutions under their jurisdiction to be
cruel and unusual punishment. 179
One commentator, arguing specifically about the question of
prisoners' rights, has said:
[T]he application of constitutional rights to persons
in prison will mitigate the evil effects of imprison-
ment .... [Tjreating prisoners as men with sub-
stantial and enforceable rights, and with some vestige
of dignity, may help check the deterioration of the
spirit which normally takes place in prison. 1°^
What might a list of the rights of prisoners contain? One
commentator has listed a number of substantive rights:
freedom of speech, press, religion, the right to petition
for redress of grievances , the right to read whatever he
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PROCEDURAL RIGHTS AND ISSUES
wishes, the right to speak about and discuss political views
("Here, however, there are some limitations; I do not suppose
that mass meetings in prisons are practicable" ), l^-'- freedom
from censorship of mail and freedom of dress and physical
appearance. He also lists some procedural rights: due
process of law, prior knowledge of specific rules and regula-
tions, written charges for alleged violations, an impartial
hearing, representation by counsel and a defined appellate
procedure short of the habeas corpus petition. 182
Another conunentator , writing from what he calls the
"prosecutor's" point of view, has stressed that there is
likely to be
a growing interest not merely in the essentially nega-
tive constitutional rights--against physical violence,
against unnecessary invasions of privacy, against racial
segregation, against denials of religious freedom,
against arbitrary punishment — but in more positive pro-
grams— for rehabilitation and retraining, for psycho-
logical counselling, for education, for medical treat-
ment of drug addiction, alcoholism and chronic debil-
itating diseases, for programs which will even look
beyond the prison walls to the support of the families
of prisoners and the creation of a place in the community
to which a prisoner can return with some likelihood of
remaining there successfully . l^-^
This commentator also refers to one other potential right of
a prisoner, "the right not to be a prisoner so long as there
is a reasonable prognosis that the defendant can safely be
allowed to be rehabilitated in the community . "^^^
It appears that a wholly adequate explication of the rights
of prisoners could best be accomplished at the statutory
level. Indeed, substantial institutional reform of the kind
not possible at the constitutional level may be the only way
to insure that prisoners can be treated as humans and thereby
respond in kind. That is not to say there is no prospect for
some broad commitment at the constitutional level; certainly
the area of prisoner rights is one where the states could act
to assert their initiative in the area of civil liberties. A
constitutional alternative which suggests itself is some
statement of the Gault principle that those incarcerated--
not merely prisoners--have all the rights of citizens except
when necessarily precluded on account of the terms of their
incarceration. Perhaps this could be coupled with a legisla-
tive mandate to statutorily embellish the broad guarantee.
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PROCEDURAL RIGHTS AND ISSUES
It is almost ironic that an old statement of constitutional
principle, written apparently without acknowledged precedent
from the common law, still speaks to one of the central
diler.mias in the administration of criminal justice. This
provision, written into Montana's Constitution more than
eighty years ago, still embodies the paramount auestion
surrounding the rights of person incarcerated. Thus, the
problem with the provision appears to be not so much that it
is ineffective, but that the conflict of values to which it
speaks has yet to be resolved.
Restoration of Rights After Completion of Sentence
Apart from v/hat substantive and procedural rights prisoners
possess throughout incarceration is the question of the
restoration--upon parole or completion of sentence--of any
rights which may have been necessarily revoked. The central
concern is that the human potential of every individual who
has run afoul of the law "may be fairly evaluated and that
every one that can be restored is restored . . . into useful
participation in community life."-'-^^
The Montana Constitution and statutes contain a number of
provisions on this question. Article XII, Section 2 provides:
"[N]o person convicted of a felony shall have the right to
vote unless he has been pardoned or restored to citizenship
by the governor ." 186 Article VII, Section 9 grants to the
governor the "power to grant pardons, absolute or conditional,
provided that before doing so, he obtains the approval of
the Board of Pardons.
The matter of what rights are restored to felons is not as
simple as these two provisions suggest. In addition, these
provisions are open to the argument that they unduly restrict
the convicted felon from returning to full citizenship after
he has been released from prison. An example of the diffi-
culties attending the status of a convicted felon can be seen
in Section 97-4720 of the Revised Codes of Montana, 1947:
A sentence of imprisonment in the state prison for any
term less than life suspends all the civil rights of
the person so sentenced, and forfeits all public
offices and private trusts, authority, or power,
during such imprisonment. The governor has power to
restore to citizenship any person convicted of any
offense committed against the laws of the state, upon
cause being shown, either after the expiration of
sentence, or after pardon. The governor may request
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PROCEDURAL RIGHTS AND ISSUES
an investigation by the board of pardons to determine
if such restoration to citizenship be advisable.
Explicit on the face of this statute is the notion that all
rights are restored; it speaks specifically of a loss of all
civil rights during imprisonment. But the second sentence of
the statute says something quite different; it implies a loss
of citizenship upon felony conviction, and further, uses an
either/or language which indicates that a convicted felon
may no longer be a citizen. Such a loss of citizenship, if
it occurs, has no authorization in the sections of the Codes
defining which persons are and are not citizens (Sections 83-
301, 83-302, 83-404). As stated by the director of the
Montana Crime Control Commission:
[I]f a felony conviction does, in fact, suspend the
felon's status as a citizen in Montana, then he is
neither an "elector" nor a "citizen not an elector"
he is in limbo, or something like that [emphasis added] 187
Seeing this lack of clarity, the statement of one commentator
becomes significant:
It is clear that the effects of a criminal conviction
remain long after formal punishment has been completed.
To the extent that these continuing effects do not
serve a legitimate public interest, they must be
removed in the interest of the individual . l""
According to one commentator, as long as prisoners do not
have clearly defined rights which cannot be taken away, the
prison system will continue to operate "for only two
purposes:"
One is to punish people, frequently all out of pro-
portion to what is required in the situation; the
other is to quarantine them, to get them off the
streets so that they will not harm anyone. All the
talk about reform and deterrence is nonsense. 189
Cruel and Unusual Punishments
The Montana Constitution [Art. Ill, Sec. 20] contains a pro-
hibition on inflicting "cruel and unusual punishments." The
federal Constitution's Eighth Amendment contains a similar
provision: "Excessive bail shall not be required, nor
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PROCEDURAL RIGHTS AND ISSUES
excessive fines imposed, nor cruel and unusual punishment
inflicted." The prohibition against cruel and unusual punish-
ments is
based on the long-standing principle of English law
that the punishment should fit the crime. That is, the
punishment should not bo, by reason of its excessive
length or severity, greatly disproportionate to the
offense charged . -'•^^
The principle was announced in 1553 in a statute which
pointed out that the security of the body politic depended
less upon the fear of law with harsh penalties than upon the
respect the subject felt for the government. The statute
noted that laws without harsh penalties were more often
obeyed and respected than their more rigorous counterparts. ^
Blackstone, in his Commentaries , stated that the right to be
free from cruel or unusual punishments "had a retrospect
to some unprecedented proceedings in the court of King's
bench, in the reign of King James the Second . "1^2
The core idea expressed in this type of provision is the
concern that the law be humane and that punishments sanctioned
by the law do not shock the conscience of society--that they
be proportionate to the offense for which the defendant was
convicted. It is interesting that during the nineteenth
century, the cruel and unusual punishment type of provision
was thought to be obsolete; a similar criticism was noted
above concerning Montana's constitutional provision on
rehabilitation and prevention. 1^3
However, in 1910, the U.S. Supreme Court announced that the
"cruel and unusual punishment" provision was alive, and that
it was "not fastened to the obsolete but may acquire meaning
as public opinion becomes enlightened by a humane justice. "^^^
Since then, it has not become much easier to determine what
constitutes a cruel and unusual punishment. Examples of
interesting decisions under the Eighth Amendment include a
196 2 Supreme Court case declaring that a statute which made
it illegal to be addicted to drugs was cruel and unusual
punishment. The court ruled that addiction was an illness —
moreover, one which may be contracted innocently or
involuntarily--and that therefore one addicted needed treat-
ment not criminal conviction. ^^^ The court also assumed that
the Eighth Amendment was applicable to the states and that
it could therefore be used to limit the states' power to
punish certain crimes in certain ways. It does not appear
that Montana courts have had occasion to adjudicate
significantly in this area.l^^
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PROCEDURAL RIGHTS AND ISSUES
Perhaps the issue of greatest contemporary concern under
this provision is that of retention or abolition of capital
punishment.
Capital Punishment
Capital punishment is as old as recorded law, its use having
been provided for in the Code of Hammurabi. The primary
objective of its use at that point, as with the Hebrew law,
was explicitly retaliation. Capital punishment was also a
tenet of Roman law, its use there generally corresponding to
contemporary usage. Capital punishment was differently
defined in the Roman law to include banishment which, given
the Roman preoccupation with public citizenship as the
fundamental precondition of a valuable human life, was a
punishment seen as being as bad as death.
Through the late Middle Ages and into the Reformation,
capital punishment came to be applied less frequently in
cases of sacrilege and more often in cases involving murder
or property. It was at this time, especially during the
eighteenth century in England, that capital punishment
reached its peak. There were about 200 capital offenses in
what was supposedly the most civilized nation in the world;
these included the theft of five or more shillings, fishing
in a private stream, or robbery of a rabbit warren. In 1801,
a 13-year-old boy was hanged for stealing a spoon, and in
1748, a 10-year-old was hanged for murder. All this was
justified at the time in the name of deterrence. The argument
loses some of its credibility when it is noted that a
favorite ground for pickpocketing, itself a capital offense,
was among the crowds gathered to view public executions.
Gradually, through the persistence of such men as Jeremy
Bentham, Sir Samuel Rommilly, and many others, the number of
capital offense was sharply reduced. Prior to this, a number
of bankers had petitioned Parliament to reduce the penalty
for stealing, then on the rampage, to a punishment that was
more credible and more enforceable.
The colonies inherited capital punishment, along with various
other English juridical practices, but the immediate trend
was to reserve it for only the most serious offenses. In
1846, Michigan became the first state to abolish it; today
ten states have abolished it.^^^ Eight other states abolished
it and later reinstated it.l^^ Three states--Iowa , Maine and
Oregon — abolished it, reinstated it, then abolished it again.
Most of Europe has abolished the death penalty with France,
Spain and the Soviet Union retaining it. The U. S. Navy is
among the long list of those who have de facto abolished
capital punishment. Nearly half of the states fall into
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PROCEDURAL RIGHTS AND ISSUES
this category--Montana is one. There is also a clear world-
wide trend toward the de jure abolition of capital punish-
ment--that is, abolition by statute or constitutional
provision. In general, the main question-areas in discussing
the retention or abolition of capital punishment are
deterrence, the protection of society, discriminatory appli-
cation and the charge that capital punishment is cruel and
unusual by modern standards .
Deterrence. The central argument against abolition of
capital punishment is that it prevents crime; that is, it
acts as a deterrent to would-be criminals. The question
here is not whether capital punishment by itself acts as a
deterrent, but whether its deterrent effect is greater than
that of a lesser punishment, for example, life imprisonment.
Although some argue that it is nearly impossible to prove or
disprove a relative deterrent effect, those who favxsr the
abolition of capital punishment can cite impressive statistics
to back up their contention that capital punishment has no
greater deterrent effect than life imprisonment. The New
York Herald Tribune noted editorially that the stattes that
have abolished capital punishment
have not found that the lack of a supreme penalty has
affected their crime rate; careful comparison of states,
region by region, shows that capital punishment does
not have the deterrent effect which is alleged as its
principal social excuse. -'-^^
If the death penalty is a deterrent for murder, then there
should be a difference between the homicide rates of similar
states, depending on whether the state has abolished the death
penalty. Table 1 shows states that are alike socially and
economically and have about the same population distribution;
it does not support claims of the uniaue deterrence of capital
punishment.
In fact, virtually every piece of statistical data
available indicates that the homicide rate is not affected
by the presence or absence of capital punishment. The
Florida Special Comirdssion to Study the Abolition of the
Death Penalty states: "What they all seem to show is that
there seems to be very little, if any relationship between
the presence or absence of the death penalty and the homicide
rate. "200
It is somewhat strange in the face of considerable statistical
evidence that the argument persists that capital punishment
deters crime better than life imprisonment. It is commonplace
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PROCEDURAL RIGHTS AND ISSUES
TABLE 1
MURDER AND NON-NEGLIGENT MANSLAUGHTER
(Rate Per 100,000 Population)
STATE
1964
1965
1966
1967
1968
Rhode Island*
1.
.2
Connecticut
1.
.8
Wisconsin*
1.
.5
Indiana
3.
,0
Michigan*
3.
,3
Illinois
5.
,5
Oregon*
1.
,8
Washington
2.
,4
2.1
1.6
1.5
3.5
4.4
5.2
3.4
2.2
1.4
2.0
1.9
4.0
4.7
6.9
2.7
2.5
2.2
2.4
1.9
3.7
6.2
7.3
3.1
3.1
2.4
2.5
2.2
4.7
7.3
8.1
3.2
3.6
*States that have abolished the death penalty.
Source: Federal Bureau of Investigation, Uniform Crime
Reports (Washington, 1969) .
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PROCEDURAL RIGHTS AND ISSUES
in law enforcement circles to do so, however, and much of the
testimony offered indicates that law enforcement officials
sincerely believe abolition of the death penalty would
increase the danger of their already hazardous occupation.
One certainly would sympathize with them on this point,
but again the weight of statistical evidence indicates
there are no facts to support this position. Two studies
on the effects of capital punishment on the homicide rate of
law enforcement officials concluded there is no connection. "1
Protection of Society. A second argument in favor of retain-
ing capital punishment amounts to variations on the theme
that capital punishment is necessary in order to protect
society. Comment already has been made on the deterrence
aspect of capital punishment's alleged protection of society.
But according to the abolitionist position, there is no
indication that persons who have committed capital crimes
are more likely to commit^other crimes than are those con-
victed of lesser crimes
202
In addition it is argued that it is the duty of parole
boards not to release a criminal unless it is considered
unlikely that he will commit another crime; of course, it is
difficult to tell whether parole boards can make accurate
assessments in this regard,
Retentionists also claim that prison personnel and inmates
are put in a position of danger when the life sentence is
substituted for capital punishment. They say that criminals
under a life sentence are more likely to kill in an attempt
to escape, especially if they know their sentence cannot be
increased. There is no hard evidence offered along with such
a contention. 203 Alternatively, some persons have even contended
that convicted murderers are among the best-behaved prisoners . 204
It also is noted against the retentionist argument that one
with a life sentence will be deterred from killing to escape
because he knows all possibility of parole would be lost.
Statistical information concerning the dangers of paroling
persons who have received life sentences is scant. What
statistics there are seem to indicate that most such prisoners
become successful parolees. As noted by one commentator:
[0]f 36 prisoners under life sentence who were paroled
between 1943 and 1958 in New York, only two were
returned to prison--one for a technical offense, and
the other for a burglary. Most of these prisoners
would have been executed if their sentences had not
been commuted. 205
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PROCEDURAL RIGHTS AND ISSUES
Discrimination and Equal Protection. Another argument
against capital punishment is that its operation is a denial
of the equal protection of the laws guaranteed by the
Fourteenth Amendment to the federal Constitution. On this
point, there is little doubt. For example, even though
women commit approximately one of every seven murders, of
the nearly 3,300 persons executed^for murder between 1930
and 1962, only thirty were women,
206
Race also is a clear factor in the application of the death
penalty. 207 por example, between 1932 and 1957, twice as many
blacks as whites were executed in the South. To be sure,
crime rates for blacks and whites are different, but not
to the extent reflected by capital punishment statistics.
Especially in cases of rape the discriminatory application
is clear. From 1930 to 1962, 446 people were executed for
rape. Forty-five of these were white, two were Indian and
399 were black. A total of 436 of these executions were in
the South. Of these, forty-two were white, two were Indian
and 392 were black. 208
Discrimination also is evident in the ability of the con-
victed to obtain commutation. For example, between 1914 and
1958 in Pennsylvania, whites received commutations three
times as often as blacks. 209 According to one commentator:
[E]ven if the existence of discrimination can
satisfactorily be proven, it would be a mistake to
argue that capital punishment should be rejected
because some discrimination exists. The proper
approach is to remedy the defect, not abolish the
system. Emphasis should be on insuring uniform
application in the future. If there is any justi-
fication at all for the death penalty it may well
overcome the objection of the unequal application which
can be remedied by more conscientious application. 210
Against this it can be argued that the nature of society
precludes an equal application of capital punishment unless
there is some sort of quota system imposed. In addition,
a law which does not have equal application — and this
especially would be true where one was about to lose his
life--is unconstitutional.
The Death Penalty as Cruel and Unusual Punishment. Con-
trasting opinions as to whether the death penalty is a
cruel or unusual punishment are not difficult to find. For
example, the U.S. Supreme Court in 1890 held that "the
punishment of death is not cruel, within the meaning of
that word as used in the constitution. It implies there is
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PROCEDURAL RIGHTS AND ISSUES
something inhuman and barbarous, something more than the
mere extinguishment of life. "211
The court has since ruled that the cruel and unusual
punishment clause is dynamic, not static, in meaning. In a
1910 opinion the court said: "Time works changes, brings
into existence new conditions and purposes. Therefore a
principle to be vital must be capable of wider applipation
than the mischief which gave it birth. "212 More recently.
Justice Barton noted in a dissenting opinion that
"abhorrence of the cruelty of ancient forms of capital
punishment has increased steadily until, today, some states
have prohibited capital punishment altogether ." 213
The American Civil Liberties Union is one of many groups
which have followed this line of reasoning and concluded:
[T]he fact that capital punishment has been acceptable
in the past is no reason for its continuation. The
rack and the screw; drawing and quartering; flogging--
all have been used and subsequently rejected as maturing
and sensitive notions of the essential commands of
human decency demonstrated the barbarity of the
practices . 214
The ACLU has concluded that contemporary notions of the
significance of human life make imposition of the death
penalty a cruel and unusual punishment and that it is there-
fore prohibited under the U.S. Constitution.
Conclusion. Montana has not had an execution since the
early forties and is thereby considered to be one of the
states which have de facto abolished capital punishment.
Thus, Montana seems to fit in the trend toward abolition of
capital punishment and comes within remarks made editorially
by the New York Herald Tribune:
Over the centuries, society has moved away from the
crueler forms of inflicting legal death; it has
limited the number of capital crimes; banned public
executions; tended to be less ready to carry existing
laws to extremes. Evidently, capital punishment
itself is becoming outdated ... as the public con-
science becomes more and more aware of the possibili-
ties for fatal error, of the capriciousness , of the
relative inef fectuality of the death penalty, its end
is inevitable . . . .215
Several alternatives for constitutional revision on this
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PROCEDURAL RIGHTS AND ISSUES
point suggest themselves. Article III, Section 24 of the
present Constitution leaves the matter to the legislature.
Another alternative would be to specify certain offenses
punishable by death; that would preclude the legislature
from determining at a later date than an offense should
not be punished by death. Capital punishment also could
be abolished constitutionally, perhaps coupled with some
reaffirmation of the inalienable right to life now speci-
fied in Article III, Section 3. Such a statement would
prohibit any offense from being punished by death until the
legislature and the public desired to amend the constitu-
tion. Finally, the issue could be placed on the ballot
separate from the body of the constitution, or in
alternative wordings for a kind of public referendum.
SAFEGUARDING RIGHTS IN ADMINISTRATIVE PROCEDURE
More than one person has noted that the delegation of legis-
lative authority to executive departments has successfully
bureaucratized government at the federal and state levels. 216
As Charles Reich has pointed out:
[I]n a democracy, laws and politics . . . must
theoretically be made in public by the people's
elected representatives. But in today's overcompli-
cated world, an overwhelmed Congress has been forced
to delegate a large measure of legislative power to
specialized executive and administrative agencies the
officials of which are not elected or directly con-
trolled by the people. ^17
Reich also has noted that when this delegation of powers
first began during the New Deal, the U.S. Supreme Court
tried to halt it. Gradually, however, the court ceased
demanding strict standards for the delegation of legisla-
tive powers, and government grew apace. 218
For more than 100 years prior to the passage of the federal
Administrative Procedures Act, the U.S. Supreme Court period-
ically admonished that the power to act arbitrarily could
not be among any delegated legislative powers. According to
the court, there was no room for arbitrary action within the
constitutional system. 219 circuit courts made the same point
in announcing that administrative action was reviewable as
to its arbitrariness.
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PROCEDURAL RIGHTS AND ISSUES
This attitude was reflected in the wording of the federal
Administrative Procedure Act as amended in 196 8. The part
of this statute relevant to these considerations is Section
10 which reads, in part:
[Ejxcept to the extent that--(l) statutes preclude
judicial review; or (2) agency action is committed to
agency discretion by law . . . the reviewing court
shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be-- (A) arbitrary,
capricious, or abuse of discretion, or otherwise not
in accordance with law.^^*^
Despite that, there seems to be no end in sight to the
prevalent assertions that administrative agencies are
capable of dealing their own mangled form of due process.
An example held to be inadequate administrative procedure--
one with implications for the discussion of a governor's
dismissal powers below--is the recent dismissal of a Montana
Highway Department employee without a hearing. In a
November 19, 1971 opinion, a Montana federal district court
ordered that the employee be reinstated. The employee had
written a letter critical of the governor's environmental
policies and subsequently was dismissed. The opinion said:
From all of the evidence, I find that the letter
written by the plaintiff about the governor triggered
the investigation, the purpose of which was to find
some cause for discharging him; that such cause was
found and was used to justify the act of firing . '^^■'-
The highway department premised the dismissal on an alleged
falsification of facts on the employee's job application.
But the judge ruled that the search for these facts was
triggered by the defendant's exercise of the First Amend-
ments freedom of speech, and that due process reauired a
hearing before dismissal.
Other rights are subject to denial by administrative agencies,
For example, as one commentator has warned:
[T] the growing pervasiveness of the elaborate adminis-
trative agency system, accompanied by an exponential
increase in technology, has challenged the Fourth
Amendment guarantee against unreasonable search and
seizure . ^^^
During the last session the Montana legislature adopted an
Administrative Procedures Act [see Revised Codes of Montana,
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PROCEDURAL RIGHTS AND ISSUES
1947, Title 82, Ch. 42]. The act aims at prescribing uni-
form procedures for the state's administrative agencies.
It provides protection for all parties in contested cases
through the mechanism of public hearings; its binds agencies
to the common law and statutory rules of evidence, grants
the right of cross-examination and guarantees that notice
shall be taken of all judically cognizable facts m all such
hearings. The act also provides for judicial review of all
contested cases at the end of all administrative remedies.
During such review, the party proceeding against the state
agency may, in the same judicial proceeding, challenge the
validity of a statute central to the administrative decision.
In such procedings the court may not substitute its judgment
for that of the agency when its weighs the evidence on
questions of fact. It may affirm the agency decision or
remand the matter for further agency action, or it may
reverse or modify the decision if the agency has proceeded
in violation of constitutional or statutory provisions, in
excess of its statutory authority, using unlawful procedure,
in erroneous law or in an aribtrary of capricious manner
which amounts to an abuse of discretion. The statute also
guarantees the right of counsel in all proceedings where one
appears under compulsion or voluntarily before a state agency.
As mentioned in the essay on separation of powers in this
report, one of the purposes of the Montana Executive
Reorganization act of 1971 was "to strengthen the executive
capacity to administer effectively and efficiently at all
levels" [see Revised Codes of Montana, 1947, Sees. 82A-101
to 2103]. Under Section 82A-106(3) of this act, the
governor is granted the power to dismiss the heads of newly
created agencies at his pleasure. This provision did not
meet with uniform acceptance during the legislature. If it
is felt that such a provision grants too much private dis-
cretion to the chief executive, an alternative would be to
safeguard certain rights of all state employees--to safe-
guard against arbitrary action against a department head or
agency employee by granting any state employee who feels he
is being arbitrarily dismissed the right to a public hearing
if he desires one and, perhaps, to judicial review. Perhaps
such a provision, without diminishing the governor's power
to dismiss persons he appoints, could assure that the exercise
of the dismissal power be subjected to public scrutiny. Such
a possibility suggests itself under the theory that such a
dismissal is an executive proceeding touching the vital
interests of the employee and, therefore, should not be con-
ducted in an arbitrary or capricious manner.
To provide broad written protection for the right to fair
treatment in the course of legislative and executive
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PROCEDURAL RIGHTS AND ISSUES
investigations and proceedings, various wordings have been
suggested and adopted in several state constitutions. The
1968 proposed Constitution of Maryland contained the follow-
ing provisions as Section 1.04: "No person shall be denied
the right to fair and just treatment in any investigation
conducted by the State or by any unit of local government,
or by any of their departments or agencies." The Alaska
Constitution contains a similar specific provision in
Article I, Section 7: "The right of all persons to fair
and just treatment in the course of legislative and
executive investigations shall not be infringed." Under
such provisions, the questions of what is fair and what is
just are left to the judiciary. The Puerto Rico Constitu-
tion contains a general provision dealing with abuses of
one's dignity in Article II, Section 8: "Every person has
the right to the protection of law against abusive attacks
on his honor, reputation and private or family life."
Robert Rankin, writing for the National Municipal League, has
suggested a provision listing certain substantive and pro-
cedural rights specifically applicable to the administrative
branch of government:
1. No person shall be bound by an administrative
decision unless on a presentation of public notice;
nor shall he be subject to the same official for
both prosecution and adjudication, nor be deprived
of liberty or property unless by a prescribed mode
of procedure .
2. In all administrative proceedings, the accused
shall have the right to a speedy and public hear-
ing by an impartial arbiter and to be informed of
the nature and cause of the accusation, to be con-
fronted with the evidence against him, and to have
the benefit of technical assistance in preparing a
defense .
3. In administrative hearings, where the amount
in controversy shall exceed twenty dollars, or
when a fundamental right is involved, the right to
a record of the proceedings shall be preserved.
Proper appellate procedure must also be provided by
legislative action. ^^3
Those general provisions do not deal with the specific problem
mentioned with respect to the state's Executive Reorganization
Act. In that regard, a justice of the California Supreme
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PROCEDURAL RIGHTS AND ISSUES
Court has said:
[T]o protect the individual against arbitrary action
of government and against the unfair discharge of its
employees, the courts have gradually imposed in this
area the requirements of due process : that the employee
be accorded the right to be notified of charges, to
defend against charges and to cross-examine accusers.
Corollary protections are afforded to the individual who
applies for work with the government but is rejected on
unsubstantiated grounds of moral or patriotic unfitness.
Finally, the individual who works for government . . .
should be secure in his right of individual political
expression and participation [emphasis added]. 224
The Constitutional Convention provides an opportunity to
consider broad provisions guaranteeing freedom from
arbitrary action and specific provisions guaranteeing the
employee's right to be free from capricious dismissal.
SAFEGUARDING RIGHTS AGAINST PRIVATE POWER
An interesting possible extension of due process safeguards
and substantive rights beyond the administrative arena
deserves mention. To develop the possibility, it is helpful
to discuss the notion that there are several kinds of freedom.
This point is concisely made by Glenn Tinder in his study of
the central questions of political thinking. 225
In answering one of these questions--namely , "are men who
live under a constitutional government necessarily free?"--
Tinder gives two possible replies that are especially
relevant here. If, argues Tinder, one holds freedom to be
merely "a state of not being subject to arbitrary and
excessive requirements on the part of government [emphasis
added] ," the answer is yes , men are free . ^^^ By definition, a
constitutional government is barred from imposing arbitrary
and excessive burdens; therefore, this definition of freedom
is satisfied by the presence of a constitution.
If, however, freedom is conceived to be meaningful only
if it means freedom from "arbitrary and excessive require-
ments from any source whatever, from a government, an
employer, a relative, or anyone else [emphasis added]," then
one could live under a constitutional government and remain
quite unfree.227 Under this concept of freedom, the important
consideration is that the "freedom depends not on constitu-
tional government alone, but on a social order in which every
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PROCEDURAL RIGHTS AND ISSUES
major power, whether governmental or otherwise, is held within
pre-established limitations . "228 An example of such an effort
to impose limitations on corporations, unions and other
social centers of sometimes arbitrary power is fair employ-
ment practice legislation. Such a theory--that government
ought to "hinder hinderances" to freedom — is not new; for
example, governments for years have attempted to weed out
obstructions to permit the unfettered operation of what
they conceived to be the free enterprise system. 229
The question here is: can the due process of law safeguards
and other substantive and procedural safeguards (perhaps
freedom of expression, assembly and petition, etc.) be ex-
tended to the nongovernmental sphere? The following is a
brief indication that such is already occurring.
An example of civil liberties activity and its potential in
non-governmental areas can be seen in the case of labor
unions. In the 1920s, civil liberties organizations were
concerned with protecting the rights of embattled labor
unions. Unions were one of the most bruised groups in
American society in those days of sweeping injunctions which
denied the right of assembly and the right to strike, of
restrictions on union organizers which curbed free speech
and prosecutions of union leaders on low-grade evidence.
Although there are still signs that there are persistent
tensions in the rights of unions to exist and function
effectively, the labor union today in general is an accepted
part of the established labor-industrial system. For
example, the right to form and join unions has long been
recognized as a part of the First Amendment's freedom of
assembly. 230 The main liberties issues surrounding unions
today have taken on a slightly different cast; they essen-
tially revolve around substantive and procedural rights of
union members. 231
At the federal level, the rights of unions and their members
are defined in statutes, particularly in the National Labor
Relations Act of 1935 and the "Bill of Rights" for union
members in the Labor-Management Reporting and Disclosure Act
of 1959. Thus, in this area, the question is perhapfe not so
much what the Constitution requires but whether these
statutes are adequate. That is, what rights should unions
and union members have against private groups, including
unions themselves?
A closely allied issue is the problem that has arisen along
with the increasing trend toward recognition of the rights
of unions to bargain collectively . 232 in a sense, a whole
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PROCEDURAL RIGHTS AND ISSUES
system of inquisitorial government is potentially implicit
in the power of the unions--as it always has been with
corporations and other centers of private power--unless some
issues are resolved. For example, one commentator asks:
[W]hat rights shall [the union member] have to equal
treatment under the governing rules of the collective
agreement? What freedom shall he have to dissent
from union policies? What voice shall he have in
choosing union officers? And what constitutional due
process in union trial procedures?^-^-^
As this cominentator goes on to say, "these questions . . .
have an important added dimension" beyond the traditional
civil liberties issues.
[T]he civil liberties issues confronted here . . .
must be of central concern in the future--the pro-
tection of personal freedom within institutions of
private power [emphasis added]. •^■^^
Very little of the scope of labor law can be covered here,
butthis body of law is a good example of the problems
encountered in sorting out the rights of persons against
private centers of power. What follows in a brief overview
of some of the civil liberties issues regarding unions;
whatever can be said of the union-union members relation-
ship applies equally to other questions of prospective
methods of increasing personal and collective freedom within
other private institutions. In fact labor legislation in
this area stands as a precedent for future activity within
other private institutions. As noted by one commentator:
[C] haracterization of the rights created by . . .
basic labor legislation immediately suggests that
perhaps other legislation should also protect individual
rights and democratic processes within other institutions
of private power . Our society is increasingly dominated
by large organizations such as corporations, trade
associations, professional societies, universities,
foundations and political parties which have varying
forms and degrees of control over individuals who come
within their institutional sphere [emphasis added]. 235
Noting there may be some problems setting up democratic
values within some institutions, he continues:
What is remarkable, if not disturbing, is that such ex-
tensive protection of the democratic process in indus-
trial institutions has generated so little serious con-
sideration as to how and in what degree individual rights
-193-
PROCEDURAL RIGHTS AND ISSUES
should be protected within our institutions of private
power. 236
The problems confronted in labor law include determining how
a union might conduct its affairs under majority rule, while
still guaranteeing minority rights. A specific example of a
problem in this area occurred in the early 1940s when a
union negotiated a collective bargaining agreement placing
black employees at the bottom of the seniority list. The U.S.
Supreme Court threw out the agreement, saying:
Congress did not intend to confer plenary power upon
the union to sacrifice, for the benefit of its members,
rights of the minority of the craft, without imposing
on it any duty to protect the minority .... So long
as a labor union assumes to act as the statutory repre-
sentative of a craft, it cannot rightly refuse to per-
form the duty, which is inseparable from the power of
representation conferred upon it ... to represent non-
union or minority union members of the craft without
hostile discrimination, fairlv, impartially, and in good
faith. 237
Thus, the union's duty to fairly represent its members was a
necessary condition of its power to collectively bargain; the
union could not collectively bargain unless it fairly repre-
sented those for whom it was bargaining. Other court cases
have prohibited arbitrary discriminations on bases other than
race, finding such discriminations in dismissals, denials of
vacations or lower rates of pay. 238
This notion of fair representation also covers the union's
duty of processing grievances. The National Labor Relations
Board has prohibited a union from refusing to process the
grievances of a black and the practice of charging non-members
for arbitration of grievances . ^^^ In addition, a federal court
has rejected the practice of a union acQuiescing in dis-
criminatory application of contract provisions on the basis
of race. The U.S. Supreme Court refused to re-hear the
case. 240
Although there are insurmountable problems--including ,
ultimately, undesireability--in the courts' overseeing union
negotiation of a contract, what is insisted upon is the equal
and fair application of general rules designed to give the
individual protection against arbitrariness and abuse. 241
Another example of rights activities within labor unions has
to do with the maintc^nancc of a democratic union. One of the
- L94-
PROCEDURAL RIGHTS AND ISSUES
statutory etforts to accomplish this end is the Landrum-
Griffin Act of 1959. According to one commentator:
[T]he Landrum-Grif f in Act trespasses directly on free-
dom of association, for it penetrates deeply into the
union's processes of self -governance , imposing on the
union and its members democratic standards and pro-
cedures for decision-making . 242
This general principle is applied specifically to such rights
as the right of membership, the right to vote, the right to
fair and open elections and freedom of speech. In sum, it
seems that a general protection of rights within the indus-
trial sphere is developing. Most of the activity is still
confined to the labor union area. As long as this remains
true, these broad safeguards will protect only a portion of
industrial workers. ^^^
One commentator, Michael Walzer, has written in a slightly
different context that the number of contracts the citizen
has with the state is less than the contacts he has with
corporate bodies. This is a form of the commonplace
assertion that the corporate sphere of the western advanced
industrial countries has developed further than--and perhaps
outstripped — the distinctly political institutions. These
corporate bodies, according to Walzer, collect taxes on
behalf of the state, maintain standards under state
requirements, spend money appropriated by the state, and,
perhaps most important, enforce rules and regulations with
the acquiescence and support of the state. ^44
Another commentator supports Walzer 's contention and argues
that the private sector often violates substantive as well
as procedural rights:
Government has no monopoly on repression of freedom of
expression. Throughout our history, repression in the
private sector of our lives has been more extensive
and often more destructive of liberty than the official
conduct of our public servants. Our current history is
no exception. Employers discharge employees because
they fear that the employee's opinion will undermine
the good will of the company and reduce sales. People
with unpopular ideas are expelled from an organization
or denied membership in an organization. Small groups
engage in violence or other disruptive tactics for the
announced purpose of preventing a speaker from express-
ing his point of view. Individuals and groups vilify
the character of another, solely to suppress his
-195-
PROCEDURAL RIGHTS AND ISSUES
opinion and his right to express it. These examples
can be multiplied. The first amendment is more than a
proscription of certain governmental action. It is a
declaration of policy that is fundamental to the
concept of American liberty. If we believe in that
concept, then the policy must apply to each of us
individually and impose a moral, if not legal, obliga-
tion to accept and abide by its declaration. 245
Walzer goes on to argue that even though these commercial,
industrial, professional and educational organizations--as
well as religious and labor organizations--all operate in
close proximity, functionally speaking and physically, with
the state, they do not duplicate the democratic politics of
the state. That is, although they possess a myriad of
official and semi-official functions and are quite a powerful
part of one's daily life, their officers and practices are
very seldom legitimated in the same sense one assumes is
the case with the democratic state.
These officers preside over what are essentially
authoritarian regimes with no internal electoral
system, no opposition parties, no free press or open
communications network, no established judicial pro-
cedures, no channels for rank-and-file
participation in decision-making. When the state acts
to protect their authority, it does so through the
property system, that is, it recognizes the corporation
as the private property of some determinate group of
men and it protects their right to do, within legal
limits, what they please with their property. When
corporate officials defend themselves, they often
invoke functional arguments. They claim that the
parts they play in society can only be played by such
men as they, with their legally confirmed power, their
control of resources, their freedom from internal
challenge, and their ability to call on the police. 2^*"
These claims, perhaps more appropriate to an authoritarian
type of organization, are subject to challenge when made in
the economic sector of a democratic society. This, then, is
the final point for consideration: should the procedural and
substantive safeguards deemed central to the democratic
character of a society be extended into the economic sphere?
Alternatively, should one who feels his fundamental sub-
stantive and/or procedural rights have been violated have a
constitutionally explicite remedy in the courts? Should
-196-
PROCEDURAL RIGHTS AND ISSUES
a person be protected against encroachments by economic
power as well as by governmental power? If so, a possible
constitutional alternative would be a broad statement
guaranteeing fundamental substantive and procedural rights
against private abuses. Such a provision probably would
need to be supplemented by detailed statutory law.
-197-
-198-
CHAPTER VI
NOTES
1. Emilie Loring, "Some Procedural Rights of the Criminal
Defendant in Montana" (unpublished Master's thesis,
University of Montana, 1963) , pp. 1-2. Cited hereafter
as Loring, "Defendant's Rights." In the area of
procedural rights, a special debt is acknowledged to
the work of Mrs. Loring. Her thesis provided the
basis for much of this chapter.
2. Watts V. Indiana 338 U.S. 49, 54 (1949). On this
point, it is curious to note that a principle parallel
to the procedural right against self-incrimination —
the presumption of innocence, a unique principle in
Anglo-American jurisprudence--never has received
constitutional expression. See Osmond K. Fraenkel,
Our Civil Liberties (New York Viking Press, 1944),
p. 143. Cited hereafter as Fraenkel, Our Civil Liberties.
3. See, for example. Editors of the Criminal Law Reporter,
The Criminal Law Revolution, 1960-1969 (Washington:
Bureau of National Affairs, Inc., 1969), p. vii.
4. Ibid. The rights of these three amendments include the
prohibitions against unreasonable searches and seizures,
double jeopardy and self-incrimination; due process of
law, eminent domain, speedy and public trial, impartial
jury, right to know the nature of the accusation, the
rights of counsel and confrontation and compulsory
process for obtaining witnesses.
5. David L. Fox, "New York Bill of Rights: Revision in the
Federal System, Essays on the New York Constitution
(South Hackensack, N.J.: Fred B. Rothmann & Co., 1966),
Ch. II, p. 3.
6. J. Skelly Wright and Abraham D. Sofaer, "Federal Habeas
Corpus for State Prisoners: The Allocation of Fact-
Finding Responsibility," Yale Law Journal 75 (May 1966):
984-985. Cited hereafter as Wright, "Habeas Corpus."
7. Perhaps to tidy up the Declaration, these and the other
statements could be organized in a more systematic order.
This is, of course, less important than the actual
presence of the guarantees. The sections containing
procedural guarantees are Sections 6, 8, 16-19, 21,
23 and 27.
-199-
NOTES
8. Thomas Macaulay, The History of England, ed. Charles
H. Firth (London, 1913-1915), I, 237. Cited from
Richard L. Perry, Sources of Our Liberties (Rahway:
Quinn & Boden Co., Inc., 1959), p. 189. Cited here-
after as Perry, Our Liberties.
9. Perry, Our Liberties, p. 189.
10. Daniel John Meador , Habeas Corpus and Magna Carta
(Charlottesville: University Press of Virginia, 1966), p. 4,
11. Rollin C. Hurd, A Treatise on the Right of Personal
Liberty and on the Writ of Habeas Corpus (Albany: W.C.
Little and Co., 1858), p. 143.
12. Illinois, Constitutional Convention of 1970, Synopsis :
Bill of Rights (Springfield, 1970).
13. U.S., President's Commission on Law Enforcement and
Administration of Justice, The Challenge of Crime in
a Free Society (Washington: U.S. Government Printing
Office, 1967), p. 139. Cited hereafter as President's
Commission, Crime and Freedom.
14. Wright, "Habeas Corpus," p. 895.
15. President's Commission, Crime and Freedom, p. 140.
16. Case v. Nebraska, 381 U.S. 336, 346 (1965).
17. President's Commission, Crime and Freedom, p. 140.
The use of the word "postconviction" in this summary
does not square with the notion that habeas corpus
extends to all persons detained and is not limited to
those who are convicted. On this point, see Fraenkel,
Our Civil Liberties, pp. 235-249. See also Sidney Asch,
Civil Rights and Responsibilities Under the Constitution
(New York: Arco, 1968) pp. 95-97.
18. Rodney L. Mott, Due Process of Law (Indianapolis: Bobbs-
Merrill Co., 1926) , pp. 1-2.
19. This equation sheds some light on the discussion of
selective vs. total incorporation of the federal Bill of
Rights provisions into the due process clause of the
Fourteenth Amendment. It lends support to the argument
that the Fourteenth Amendment was worded so as to apply
the "law of the land" (including the federal Bill) to
the states through the due process clause.
-200-
NOTES
20. Perry, Our Liberties, note 5 at pp. 126-7.
21. Ibid. , p. 429.
22. Irving W. Brant, The Bill of Rights: Its Origin and
Meaning (New York: New American Library, 1965), p.
224. Cited hereafter as Brant, The Bill of Rights.
23. See Adamson v. California, 332 U.S. 46 (1947), especially
Black, J., dissenting opinion at p. 68.
24. Brant, The Bill of Rights, p. 352.
25. See Olsen v. Nebraska, 313 U.S. 236 (1941).
26. Murray's Lessees v. Hoboken, 18 How. 272,276-7 (1856).
27. Hurtado v. California, 110 U.S. 516 (1884).
28. Brant, The Bill of Rights, p. 359.
29. Loring, "Defendant's Rights," p. 158.
30. Martin Friedland, Double Jeopardy (Oxford: Clarendon
Press, 1969), p. vii.
31. Notes, "Twice in Jeopardy," Yale Law Journal 75 (1965):
262. Cited hereafter as Notes , " Jeopardy . "
32. Notes, "Criminal Law — Double Jeopardy," Minnesota Law
Review 24 (1940) : 522.
33. Notes, "Jeopardy." For the irreverence to the principle,
see William H. Comley, "Former Jeopardy," Yale Law Journal
35 (1926) : 674.
34. Green v. U.S. , 355 U.S. 184, 187 (1957). Cited in Loring,
"Defendant's Rights."
35. An effort was made in the 1889 Convention to define "double
jeopardy" precisely, but the delegates, realizing such a
definition could be held to be exclusive, eliminated the
qualifying phraseology. See Emilie Loring, "Montana's
Bill of Rights," unpublished paper from Department of
Political Science, University of Montana, Missoula, p. 18.
36. Palko V. Connecticut, 302 U.S. 319 (1937).
37. Ibid. , p. 328.
-201-
NOTES
38. Benton v. Maryland, 395 U.S. 784 (1969).
39. 16A C.J.S. 107, Sec. 584, 1971 Supplement, pp. 633-34.
40. Price v. Georgia, 398 U.S. 323, 329 (1969).
41. U.S. V. Ball, 163 U.S. 662 (1896). Cited in Ibid.,
p. 326.
42. Ashe v. Swonson , 397 U.S. 436 (1970).
43. Waller v. Florida, 397 U.S. 387 (1970).
44. This point is raised in Walter V. Schaefer, "Unresolved
Issues in the Law of Double Jeopardy: Waller and Ashe,"
California Law Review 58 (March, 1970): 391. Cited
hereafter as Schaefer, "Double Jeopardy."
45. Ibid. p. 398.
46. Bartkus v. Illinois, 359 U.S. 121 (1959).
47. Abbate v. U.S. , 359 U.S. 187 (1959).
48. Bartkus v. Illinois, 359 U.S. at p. 150.
49. Schaefer, "Double Jeopardy," pp. 400-401.
50. Murphy v. Waterfront Commission, 378 U.S. 52, 55-56
(1964). See also Elkins v. United States, 364 U.S.
206 (1960) where the court overturned a theory that
permitted evidence illegally seized by state officials
to be used in a federal trial for the same offense. In
this case. Justice Stewart (at p. 210) noted the "entirely
commendable practice of state and federal agents to cooperate
with each other in the investigation and detection of
criminal activity." He also stated (at p. 215) that it
mattered not to the defendant whether his rights were
invaded by a federal or a state official.
51. Immediately after the enunciation of the two sovereignties
rule, the attorney general instructed all U.S. attorneys
not to bring prosecution on the heels of an antecedent
state prosecution unless they obtained his permission.
52. See Hawaii, Legislative Reference Bureau, Article I:
Bill of Rights, Hawaii Constitutional Convention Studies
(Honolulu: University of Hawaii, 1968), p. 95. Cited
hereafter as Hawaii, Bill of Rights.
-202-
NOTES
53. Association of the Bar of the City of New York, Special
Committee on the Constitutional Convention, Bill of Rights
(New York: 1967) , p. 9.
54. Trial of Lilburne, Howell (comp. ) , State Trials III,
p. 1315 (1636). Cited from Leonard Levy, "The Right
Against Self-incrimination: History and Judicial History,"
Political Science Quarterly 84 (March, 1969) : Note 45
at p. 12. Cited hereafter as Levy, "Self-incrimination."
55. Alfred H. Kelly, "Clio and the Court: An Illicit Love
Affair," Supreme Court Review: 1965 (1965): 119-158.
56. John H. Wigmore, "Nemo Tenetur Seipsum Prodere , " Harvard
Law Review 5 (1891): 88.
57. Levy, "Self-incrimination," p. 29.
58. Fraenkel, Our Civil Liberties, p. 143.
59. Hawaii, Bill of Rights, p. 100.
60. Loring, "Defendant's Rights," pp. 65-66.
61. Ibid. , p. 66.
62. Malloy v. Hogan, 378 U.S. 1 (1964).
63. Miranda v. Arizona, 384 U.S. 436, 490 (1964).
64. Counselman v. Hitchcock, 142 U.S. 547, 562 (1892).
65. Levy, "Self-incrimination," p. 20.
66. Marbury v. Madison, 1 Cranch (U.S.) 137 (1803).
67. Levy, "Self-incrimination," note 81 at pp. 21-22.
68. Brown v. Walker, 161 U.S. 591 (1896). Cited from Ibid. , p. 23,
69. Ullman v. U.S. , 350 U.S. 422 (1956).
70. Levy, "Self-incrimination," p. 23.
71. Murphy v. Waterfront Commission, 378 U.S. 52 (1964).
72. Loring, Defendant's Rights," p. 94.
73. State v. Kessler, 74 Mont. 166, 239 P. 1000 (1925); State
V. Inich, 55 Mont. 1, 173 P. 230 (1918); State v. DeLeo ,
•203-
NOTES
36 Mont. 531, 93 P. 814 (1908); State v. Farnham, 35
Mont. 375, 89 P. 728 (1907).
74. State v. Stevens, 60 Mont. 390, 199 P. 258 (1921).
75. See State v. Rogers, 31 Mont. 1, 77 P. 2d 293 (1940);
State V. Crowe, 39 Mont. 174, 102 P. 509 (1909).
76. State v. Gleim, 17 Mont. 17, 41 P. 998 (1895); State v.
Kankaris, 40 Mont. 180, 188 P. 644 (1920).
77. State v. Greeno, 135 Mont. 80, 342 P. 2d 1032 (1959).
78. Thomas C. Reeves, Freedom and the Foundation (New York:
Alfred A. Knopf, 1969), p. 119.
79. Hopt V. Utah, 110 U.S. 574, 584 (1884).
80. Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).
81. Levy, "Self-incrimination," p. 27.
82. Miranda v. Arizona, 384 U.S. 436, 467-74 (1964).
83. Mapp V. Ohio, 367 U.S. 643, 685 (1961) (Harlan, J.
dissenting). Cited from Ibid. , p. 466.
84. New York, Temporary State Commission on the New York
Constitutional Convention, Individual Liberties: The
Administration of Criminal Justice (New York, 1967),
p. 21. Cited hereafter as New York Constitutional
Convention Commission, Individual Liberties.
85. Cited from Ibid. , note 74 at p. 21.
86. Ibid. , p. 24.
87. State v. Brecht, 28 State Reporter 468 (1971).
88. Ibid. , p. 473.
89. Ibid. , p. 475.
90. New York Constitutional Convention Commission, Individual
Liberties , p. 22.
91. Cited from Levy, "Self-incrimination," p. 29.
92. David Fellman, The Defendant's Rights (New York: Rinehart
& Company, Inc., 1958), p. 1. Cited hereafter as Fellman
Rights.
-204-
NOTES
93. Ibid. , p. 2.
94. Ibid. , pp. 2-3.
95. Ibid. , pp. 3-4.
96. Ibid. , p. 22.
97. Ibid. , pp. 22-23.
98. Stack V. Boyle, 342 U.S. 1, 4 (1951).
99. Hudson v. Parker, 156 U.S. 277, 285 (1895).
100. Montana, Constitutional Convention of 1889, Proceedings
and Debates of the Constitutional Convention (Helena:
State Publishing Co., 1921), p. 254. Cited hereafter
as 1889 Proceedings.
101. Ibid. , p. 255.
102. Ibid.
103. Ibid. , pp. 255-262.
104. State v. Vanella, 40 Mont. 326, 337, 106 P. 364 (1910).
105. Ibid. , pp. 332-339.
106. Tooker v. State, 147 Mont. 207,219, 410 P. 2d 923 (1966).
107. Hurtado v. California, 110 U.S. 516 (1884).
108. Jethro K. Lieberman, Understanding Our Constitution
(Greenwich: Fawcett Publications, 1968), p. 174.
109. 1889 Proceedings, pp. 99-100.
110. Ibid. , p. 101.
111. Ibid. , pp. 101-102.
112. Ibid. , pp. 105-106.
113. Ibid. , pp. 107-118, 251-253.
114. State v. Brett, 16 Mont. 360, 40 P. 873 (1895). See also
State v. Cain, 16 Mont. 561, 563, 41 P. 709 (1895).
115. State v. Brett, 16 Mont. 360, 364, 40 P. 873 (1895).
-205-
NOTES
116. Fellman, Rights , p. 30. Citing Rodney L. Mott, Due
Process of Law (Indianapolis: Bobbs-Merrill Co., 1926),
Ch. 13.
117. Cochran v. U.S. , 157 U.S. 286, 290 (1894).
118. State V. Wolf, 56 Mont. 493,185 P. 556 (1919).
119. Ibid. , pp. 499-500.
120. Perry, Our Liberties, p. 8.
121. Loring, "Defendant's Rights," pp. 11-12.
122. Patton v. U.S. , 281 U.S. 276, 288 (1929).
123. Ibid.
124. Duncan v. Louisiana, 391 U.S. 145 (1968).
125. Ibid. , pp. 148-149. Quoting Powell v. Alabama, 287
U.S. 45, 67 (1932), In re Oliver, 333 U.S. 257, 273
(1948), and Gideon v. Wainwright, 372 U.S. 335, 343-
344 (1963).
126. Ibid. , p. 149.
127. State v. Mott, 29 Mont. 292, 297 (1903).
128. Loring, "Defendant's Rights," pp. 51-52.
129. State v. Logan, 27 State Reporter 647, 473 P. 2d 833 (1970)
130. Ibid. , p. 654. Citing State v. Bischert, 131 Mont.
152, 308 P. 2d 609 (1957); Petition of Larocque, 139
Mont. 405, 365 P. 2d 950 (1961).
131. Loring, "Defendant's Rights," p. 52.
132. Chessman v. Hale, 31 Mont. 577, 590 (1904). Under former
Section 1110 of the Code of Civil Procedure one could
waive the right only by failing to appear at the trial,
by written consent, or by oral consent in open court.
133. Klopfer v. North Carolina, 386 U.S. 213 (1967).
134. Bannack Statutes Sec. 179, p. 244.
13 5. State ex rcl. Thomas v. District Court, 151 Mont. 1,
438 P. 2d 554 (1968) .
-206-
NOTES
136. In re Oliver, 333 U.S. 257 (1948).
137. Samuel S. Wilson, "Chaos in the Courtroom: Adequate Press
Facilities for Highly Publicized Trials," University of
Cincinnati Law Review 36 (1967): 210.
138. State v. Keeler, 52 Mont. 205, 212, 156 P. 1080 (1916).
139. Ibid. , pp. 220-221.
140. Loring, "Defendant's Rights," p. 186.
141. Barron v. Baltimore, 7 Peters 243 (1833).
142. Powell V. Alabama, 287 U.S. 45 (1932).
143. Betts V. Brady, 316 U.S. 455 (1942).
144. Gideon v. Wainwright, 372 U.S. 335 (1963).
145. Douglas v. California, 372 U.S. 353, 357 (1963).
146. Pickelsimer v. Wainwright, 375 U.S. 2 (1963).
147. State v. Blakeslee, 131 Mont. 47, 55, 306 P. 2d 1103 (1957)
148. State v. District Court et al. , 85 Mont. 215, 222-223,
278 P. 122 (1929) .
149. Ibid. , p. 224.
150. State v. Noller, 142 Mont. 35, 37, 381 P. 2d 293 (1963).
151. Ibid. , p. 38.
152. Ibid. , p. 39.
153. Notes, "Confrontation & Cross-Examination in Executive
Investigations," Virginia Law Review 56 (1970): 487.
154. Fellman, Rights , p. 47.
155. Fraenkel, Our Civil Liberties, p. 177.
156. Hawaii, Bill of Rights p. 109.
157. State v. Storm, 127 Mont. 414, 419, 265 P. 2d 971 (1953).
158. Pointer v. Texas, 380 U.S. 400, 406 (1965).
-207-
NOTES
159. Kirby v. U.S. , 174 U.S. 47 (1899).
160. Ibid., P. 55.
161. Ibid.
162. Formerly Revised Codes of Montana, 1947, Sees. 94-8901
to 8909.
163. Daniel A. Rezneck, "The Rights of Criminal Defendants,"
The Rights of Americans; What They Are and What They
Should Be, ed. Norman Dorsen, (New York: Random House,
1971), p. 433. Cited hereafter as Rezneck, "Criminal
Defendants. "
164. Mathew 0. Tobriner, "Individual Rights in an Industrialized
Society," American Bar Association Journal 54 (1968): 22.
Cited hereafter as Tobriner, "Individual Rights."
165. Rezneck, "Criminal Defendant," p. 433.
166. Edmund W. Kitch, "The Supreme Court's Code of Criminal
Procedure: 1968-1969 Edition," The Supreme Court
Review (1969) : 202.
167. Montana, Constitutional Convention 1971-1972, Constitutional
Convention Commission, Sources of the Montana State
Constitution, prepared by Elbert F. Allen, Montana
Constitutional Convention Research Memorandum No. 4, (Helena,
1971) , p. 2.
168. Cited from Robert Rutland, The Birth of the Bill of Rights:
1776-1791 (Chapel Hill: University of North Carolina
Press, 1955) , p. 75.
169. 1889 Proceedings, p. 125.
170. Ibid.
171. Ibid. , p. 126.
172. Ibid.
17 3. Two amendments were made to the provision and another
motion to strike it out was defeated. Ibid. , p. 268.
174. Montana, Legislative Council, The Montana Constitution,
Report No. 25 (Helena, 1971), pp. 14-15.
175. Montana, Constitutional Convention 1971-1972, Constitutional
-208-
NOTES
Convention Commission, Constitutional Provisions Proposed
by Constitution Revision Commission Subcommittees,
Montana Constitutional Convention Occasional Paper No. 7
(Helena, 1971) , p. 45.
176. In re Gault, 387 U.S. 1 (1967).
177. In re Bonner, 151 U.S. 242 (1894); Coffin v. Reichard,
143 F.2d 443 (6th Cir. 1944), cert, denied, 325 U.S.
887 (1945).
178. Wall Street Journal, November 3, 1971, p. 1, 27.
179. Ibid.
180. Victor Rabinowitz, "The Expansion of Prisoners' Rights,"
Villanova Law Review 16 (August 1971) : 1048-9. Cited
hereafter as Rabinowitz, "Prisoners' Rights."
181. Ibid. , p. 1050.
182. Ibid. , p. 1049-53.
183. James D. Crawford, "Prisoner's Rights — A Prosecutor's
View," Villanova Law Review 16 (August, 1971): 1056-7.
184. Ibid. , p. 1057.
185. "Editorial," Judicature 54 (October, 1971): 93.
186. This provision is restated in the Revised Codes of Montana,
1947, Section 23-2701 (C) (2), which provides: "No person
convicted of a felony has the right to vote unless he has
been pardoned."
187. Letter from Brinton B. Markle to William F. Crowley,
April 19, 1971.
188. Gail Ohanesian, "Restoration of Rights to Felons in
California," Pacific Law Journal 2 (1971): 736.
189. Rabinowitz, "Prisoners' Rights."
190. Perry, Our Liberties, p. 236.
191. I Mary, State I, c.I. Cited from Ibid. , note 102 at
p. 236.
192. Sir William Blackstone, Commentaries on the Laws of England,
IV, p. 379. Cited from Perry, "Our Liberties," p. 236.
-209-
NOTES
193. Hubbs V. State, 133 Ind. 404, 409-410 (1893).
194. Weems v. U.S. , 217 U.S. 349, 378 (1910).
195. Robinson v. California, 370 U.S. 660 (1962).
196. See Daily v. Marshall, 47 Mont. 377, 398, 133 P. 681
(1913) ; State ex. rel. Hardy v. State Board of Equalization ,
133 Mont. 43, 319 P. 2d 1061, 1063 (1957).
197. Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, New
Mexico, Oregon, West Virginia and Wisconsin. Four other
states have abolished capital punishment except for
exceptional crimes such as treason, piracy or the
killing of a policeman.
198. Arizona, Colorado, Delaware, Kansas, Missouri> South
Dakota, Tennessee and Washington.
199. Cited from Trevor Thomas, This Life We Take, Friends
Committee on Legislation (San Francisco: 1970), p. 9.
Cited hereafter as Thomas, This Life.
200. Florida, Report of the Special Commission to gtudy the
Abolition of the Death Penalty in Capital Cas^s
(Tallahassee: State of Florida, 1965), p. 16.
201. Dr. Thorstein Sellin, The Death Penalty and PUblic Safety.
Cited from Thomas, This Life, p. 16.
202. Comment, "Capital Punishment," Tennessee Law Review 29
(1962) : 534-550. Cited hereafter as Comment, "Capital
Punishment. "
203. William Hochkammer , "The Capital Punishment Controversy,"
The Journal of Criminal Law, Criminology, and Police
Science 60 (1969): 362. Cited hereafter as Hochkammer,
"Capital Punishment."
204. Comment, "Capital Punishment," p. 548. See also Thorstein
Sellin, "Capital Punishment," Federal Problems 25
(1961) : 3.
205. Hochkammer, "Capital Punishment," 362.
206. Ibid. , p. 361.
207. Comment, "Capital Punishment," pp. 542-5.
208. Hochkammer, "Capital Punishment," p. 362.
-210-
NOTES
209. Ibid.
210. Ibid.
211. In re Kemmler , 136 U.S. 436, 447 (1890).
212. Weems v. U.S. , 217 U.S. 349 (1910).
213. Francis v. Resweber, 329 U.S. 459, 472 (1959) (Barton, J.
dissenting opinion) .
214. American Civil Liberties Union, The Death Penalty and
Civil Liberties (New York: July, 1965), n.p.
215. Cited from Thomas, This Life, pp. 9-10.
216. See, e.g., Robert Rankin, State Constitutions; The Bill
of Rights (New York: National Municipal League, 1960),
pp. 10-11. Cited hereafter as Rankin, Bill of Rights.
217. Charles Reich, Bureaucracy and the Forests (Santa Barbara:
Center for the Study of Democratic Institutions, (1962),
p. 2.
218. Ibid.
219. See, for example, Garfield v. U.S. ex. rel. Goldsby,
211 U.S. 249, 262 (1908); Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886); F.C.C. v. Schreiber, 381 U.S. 279,
292 (1965). Cf. Ravul Berger , "Administrative
Arbitrariness: A Synthesis," Yale Law Journal 78
(1969): 966. Cited hereafter as Berger, "Administrative
Arbitrariness . "
220. 5 U.S.C. 7-1-06 (Supp. Ill, 1968).
221. The (Helena, Mont.) Independent Record, November 21,
TT71, p. 1. For an example of the debate on whether
such actions should be judicially reviewable, see
Berger, "Administrative Arbitrariness," note 9 at p. 966.
222. Note, "Constitutional Rights and Administrative Investigations:
Suggested Limitations on the Inquisitorial Powers of the
Federal Agencies," Georgetown Law Journal 58 (1969): 345.
223. Rankin, Bill of Rights, p. 11.
224. Tobriner, "Individual Rights," p. 22.
225. Glenn Tinder, Political Thinking: The Perennial Question
(Boston: Little, Brown and Co., 1970), pp. 81-86.
-211-
NOTES
226.
Ibid.
, p. 81
227.
Ibid.
, p. 82
228.
Ibid.
229.
Cf.,
Bernard
Cf . , Bernard Bousanquet, The Philosophical Theory of the
State. Cited from Ibid., p. 86.
230. Thomas v. Collins, 323 U.S. 516 (1945). Of course, there
is doubt whether this right extends to public employees.
In addition, this right of itself, protects only the
existence of a union, not its effectiveness.
231. Clyde W. Summers, "The Rights of Unions and Union Members,"
Rights of Americans, ed. Norman Dorsen (New York: Random
House, 1970), pp. 591-592. Cited hereafter as Summers,
"Rights."
232. For example of state constitutional recognition of this
right, see Florida Const. Art. I, Sec. 6; Missouri
Const. Art. I, Sec. 29; New Jersey Const. Art. I,
Sec. 19; New York Const. Art. I, Sec. 17.
233. Summers, "Rights," p. 592.
234. Ibid. , pp. 592-593.
235. Ibid. , p. 616.
236. Ibid.
237. Steele v. Louisville and Nashville Railway, 323 U.S.
192, 199 (1945).
238. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Radio
Officers Union v. NLRB , 347 U.S. 17 (1958).
239. Hughes Tool Co., 104 N.L.R.B. 318 (1953).
240. Local 12, Rubber Workers v. NLRB, 368 F.2d 12 (5th
Cir. 1966), cert, denied, 389 U.S. 837 (1967).
241. Summers, "Rights", p. 609.
242. Ibid.
243. Ibid. , pp. 616-617.
244. Michael Walzer, "Civil Disobedience and Corporate Authority,"
-212-
NOTES
Power and Coimnunity, eds. Philip Green and Sanford
Levinson (New York: Random House, 1969), p. 225.
245. Alfred C. Emery, "An Oath of Freedom," Utah Law
Review (1971) : 209.
246. Ibid. , pp. 226-227.
-213-
-214-
CliAPTLR VII
I'RIVACY AND ITS liJVASION
Volumes have been v/ritten in recent years concerning the potential
of excessive invasion of citizen privacy by the same advanced
technological society tliat sends men into space. Aspects of the
problem discussed in this report include the traditional consti-
tutional safeguards of the privacy of the home (the prohiuition
of unreasonable searciies and seizures), a specific contemporary
privacv issue (wirctap[)ing and electronic surveillance) and the
potential of a broad statement aesigned to aid tne judiciary in
deciding privacy questions (the right of privacy).
SLARCIIES ANb SLIZURLS
The people shall be secure in their persons, papers,
homes and effects, from unreasonable searches and
seizures, and no warrant to search any place or seize
any person or thing shall issue without describing
the place to be searched, or the person or thing to
be seized, nor without probable cause, supported oy
oatn or affirmation, reduced to writing. [Montana
Const. Art. Ill, £ec.7]
History
The Bill of :^ights of the 1776 Constitution of Virginia contained
what one commentator has called 'a notable advance in the protec-
tion of personal security. "^ Section 10 of that bill of Rignts
declared
that general warrants, whereby an officer or messenger
may be commanaed to search suspected places without
evidence of a fact committed, or to seize any person or
persons not named, or v/hose offence is not particularly
descrioed and supported by evidence, are grievous and
oppressive, and ought not to be granted.
This forerunner of contemporary search and seizure clauses was
antedated by a general rule of the English common law, which
prohibited the use of search v/arrants and warrants of arrest
that did not describe in detail the place to be searched or
things or persons to be seized. ^ in his famous Commentaries ,
Blackstone explained tijis rule by saying:
-215-
PRIVACY AND ITS INVASION
A general warrant to apprehend all persons suspected,
without naming or particularly describing any person
in snecial is illegal and void for its certainty; for
it is the duty of the magistrate, and ought not to be
left to the officer, to judge of the ground of suspi-
cion. And a warrant to apprehend all persons, guilty
of a crime therein specified, is no legal warrant:
for the point, upon which its authority rests is a
fact to be decided on a subsequent trial; namely
whether the person apprehended thereupon be really
guilty or not. 3
To this rule. Parliament chose to make exceptions to cover
situations in the American colonies. The first exception was
the writ of assistance, which was used for the enforcement of
various trade acts. It permitted officers of the Crown to
break and enter at will and seize goods deemed contraband.
Although these writs were supposed to expire, they were renewed
by Parliament. This gave occasion for James Otis' famous
argument against the writs. ile argued that they violated the
notion (first expressed by Sir Ldmond Coke) that "a man's home
is his castle." Otis was not opposed to a warrant where the
ground for suspicion previously was sworn to; however, he said,
any incompetent or oppressive official could abuse the general
warrant. Again relying on Coke, Otis argued that the writs were
contrary to natural law and the English constitution and accord-
ingly, even though they were acts of Parliament, they were void.
Despite a good deal of protest against the writs, they were later
authorized by the Townshend Revenue Act of 1767. That act was
one of those condemned by members of the First Continental
Congress as violating the rights of Englishmen--rights to which
they believed all colonists were entitled.
The other exception Parliament permitted to the common law rule
against general warrants involved granting a warrant which could
be used to search for and seize allegedly libelous publications
and to arrest seditious persons. Although the act authorizing
this practice expired in 1695, royal officials continued to use
this type of warrant until 1765 when an English court ruled
against it.''
Thus, it is not surprising that in drafting the Virginia bill
of Rights, George Mason — who later was to suggest a federal Bill
of Rights--set forth the principle of opposition to general
warrants. The colonists had experienced the abuse of the general
warrant at the hands of zealous royal officials; understandably,
then, when James iMadison offered his Bill of Rights amendments
to the First U.S. Congress, a search-and-seizure provision was
among them. It read:
-216-
PRIVACY AND ITS INVASION
The rights of the people to be secured in their persons,
their houses, their papers, and their other property,
from all unreasonable searches and seizures, shall not
be violated by warrants issued without probable cause,
supported by oath or affirmation, or not particularly
describing the places to be searched, or the persons
or things to be seized.^
To be sure, there was a considerable number of state precedents
of this sort. All approximated the current wording of the
Fourth Amendment to the United States Constitution;
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the places to be searched, and the persons
or things to be seized.
Nearly every state constitution contains wording of this sort
limiting the scope of acceptable searches and seizures and
defining the proper procedure to obtain a warrant. A brief
look at the kinds of decisions handed down under these provisions
follows .
The Supreme Court and the Fourth Amendment
In 1886, the United States Supreme Court tied the Fourth Amend-
ment to the Fifth Amendment by saying that an unreasonable
search and seizure was the same as forcing a person to be a
witness against himself. The court also said that an actual
entry upon one's premises was not required to constitute
unreasonable search and seizure — that forcing a party to produce
his records was sufficient. Accordingly, the court prohibited
the seizure of a man's papers in an effort to use them to convict
him of crime. Perhaps more important, the court said:
Constitutional provisions for the security of
person and property should be liberally construed.
A close and literal construction deprives them of
half their efficacy, and leads to gradual depreci-
ation of the right, as if it consisted more in
sound than in substance."
One commentator has written that it may seem remarkable today
-217-
PRIVACY AND ITS INVASION
that civil liberties-wise these constitutional
provisions [the Fourth Amendment] reflected only
hollow rhetoric durinq the 19th and the first half
of the 20th centuries. The police regularly burst
through doors and ransacked premises without bothering
to obtain a warrant and people were sent to jail on
the basis of the incriminating data thereby dis-
covered. True enough, the invading police officers
miaht be sued for trespassing on private property,
but this was little solace for the imprisoned victim
of their invasion.^
The Supreme Court itself admitted as late as 1961 that "trespass
actions against officers who make unlawful searches and seizures
are mainly illusory remedies. "8
It was not until 1914 that the court, saying it no longer could
countenance a direct violation of the defendant's constitutional
rights, held that any material obtained as a result of an
unreasonable search by federal officials was inadmissible as
evidence in a federal court. ^ Although the Fourteenth Amend-
ment and its guarantee of due process of law and equal pro-
tection of the laws to citizens of every state were nearly
fifty years old, the states were not required to abide by this
exclusionary rule. That is, the product of an unreasonable
search and seizure by a state officer was still admissible as
evidence in state courts.
The question of the admissibility of unconstitutionally obtained
evidence into state courts was faced squarely by the court in
1949^10 Justice Frankfurter, writing the opinion for the court,
acknowledged that "the security of one's privacy against arbi-
trary intrusion by the police--which is at the core of the
Fourth amendment--is basic to a free society." However, to the
question of v;hether unconstitutionally obtained evidence could
be admitted in the state courts, the court answered yes. Thus,
although ruling privacy to be basic to a free society, the court
also ruled that the states did not have to follow the federal
example enunciated in 1914. ■'■^
In 1961, the court reversed its stand. In Mapp v. Ohio, it
ruled that state courts could not use any evidence acquired in
violation of the Fourth Amendment right against unreasonable
search and seizure. Justice Clark, who wrote the opinion of
the Court, said "we can no longer permit that right to remain
an empty promise. "12 Thus, nearly fifty years after the federal
Fourteenth Amendment, the exclusionary rule was applied to the
states. As E. F. Roberts noted, "in 1961 the law finally put
-218-
PRIVACY AND ITS INVASION
an effective halt to police invasion of premises unless they
were armed with a warrant or exceptional circumstances obtained. "13
On the other hand, Roberts added, there is evidence that the 1914
court decision was ahead of its time. It probably is true that
"the citizenry as a whole . . . saw nothing untoward in jailing
some culprit should a police raid 'get the goods on him' because,
after all, the poor bugger was guilty ." ■'■'^ That the decision
perhaps predated its understanding and acceptance also indicated by
the so-called "silver platter" doctrine. After the 1914 decision
was announced and until 1960, the court held that federal
prosecutors could use evidence that was obtained illegally by state
and local low enforcement officers. The logic of this doctrine
was that state and local officials could aid federal officials
in circumventing tlie exclusionary rule of the 1914 decision by
gathering the evidence in any manner, legally or otherwise, and
presenting it on a "silver platter" to federal officials. The
practice was not prohibited until 1960 in Elkins v. U.S.-'-^ The
logic of the theory roughly parallels that of the "two sover-
eignties" rule discussed in the double jeopardy portion of this
report.
That the states now are quite securely bound by federal decisions
on the exclusion of improperly obtained information is indicated
by a 1964 decision in which the court, in the words of one
commentator, "made it clear that the Mapp rule must be obeyed and
that no shabby subterfuges would be tolerated."-*-" The Montana
Supreme Court stated this principle in 1969 in a case discussed
below.
A possible method of accommodating the exclusionary rule would
be to state it explicitly in the state constitution. An example
of the type of wording that would accomplish this is seen in a
proposed New York revision, in which the following words were
added at the conclusion of the search and seizure provisions:
"Evidence obtained in violation of this section shall not be
admissible in any judicial, legislative, or administrative
proceeding" [Proposed New York Constitution of 1967, Art. I,
Sec. 4 (c)].
Probable Cause
One of the main requirements for a reasonable search and seizure
is that probable cause be shown. The U.S. Supreme Court in 19 49
attempted the following definition of probable cause:
In dealing with probable cause ... as the very
name implies, we deal with probabilities. These
-219-
PRIVACY ANLi ITS INVASION
are not technical; they are the factual and nrac-
tical considerations of everyday life on which
reasonable and prudent men, not legal technicians,
act ....
"The substance of all the definitions" of probable
cause "is a reasonable ground for belief of guilt."
And this "means less than evidence which would
justify condemnation" or conviction, as Marshall,
C. J., said for the Court more than a century
ago .... Since Marshall's time it has come to
mean more than bare suspicion: Probable cause
exists where "the facts and circumstances within
their [the officers'] knowledge and of which they
had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense
has been or is being committed ....
These long-prevailing standards seek to safeguard
citizens from rash and unreasonable interferences
with privacy and from unfounded charges of crime.
They also seek to give fair leeway for enforcing
the law in the community's protection. Because
many situations which confront officers in the
course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes
on their part. But the mistakes must be those of
reasonable men, acting on facts leading sensibly
to their conclusions of probability. The rule
of probable cause is a practical, nontechnical
conception affording the best compromise that has
been found for accommodating these often opposing
interests. Requiring more would unduly hamper
law enforcement. To allow less would be to leave
law-abiding citizens at the mercy of the officers'
whim or caprice [case citations omitted] . •'■^
Interesting questions arise in the case of a search conducted
without a warrant. The court has attempted on a number of
occasions to square warrantless searches with the probable
cause requirement in an effort to stake out some grounds for
reasonable searches without warrants. Until recently, the
standards governing the scope of a search incident to an arrest
were as stated in the Harris and Rabinowitz decisions. ^^ These
two decisions expanded the permissible scope of searches
incident to arrest beyond previous standards by permitting
searches in cases where traditional justif ications--possible
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destruction of evidence, officer protection or prevention of
the suspect's escape--were absent. ^^
However, the court in 1969 reassessed the standards for a
permissible search incident to arrest and concluded, generally,
that a search could be made only of the individual and the area
within his immediate control. ^0 One commentator has suggested
the effect of this 1969 ruling is quite broad:
[A] search of the area under the immediate control of
another person, not under arrest, probably will be
permitted if that person is deemed to be an extension
of the arrestee's physical presence. It is also
possible that the police may be permitted an over-all
view of the other rooms in the premises. This view
would be restricted to a cursory glance through each
room for possible accomplices. A detailed search
outside the area of the defendant's immediate control
would not be permitted. It appears that these new
standards will also apply to automotive searches and
this should stop the police from completely searching
the car every time they made an arrest. ^^
The Fourth Amendment in Civil and Administrative Proceedings
The Fourth Amendment's exclusionary rule has not been construed
to apply to evidence seized by private persons or administrative
agencies and officers not charged with law enforcement. But
recent rulings indicate a move is being made to extend the
protection to administrative proceedings. For example, if an
administrative proceeding is quasi-criminal in nature and its
potential result would be to penalize a person for a violation
of the law, evidence submitted is subject to Fourth Amendment-
based scrutiny. 22 ^y 1967 Supreme Court rulings, it was
established that a search conducted by a regulatory agency in
nonemergency conditions required a search warrant unless the
owner or tenant consented to the search
23
A possible constitutional alternative in this area is some
explicit guarantee that the unreasonable search and seizure
provisions apply to all criminal, civil and administrative
proceedings and that any information obtained in violation of
such provisions would not be admitted as evidence in a criminal,
civil or administrative proceeding. This was done in the
previously discussed New York constitutional proposal.
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Police Detention and Investigation
A recent area of controversy in search and seizure concerns the
police investigatory technique of stopping and frisking a sus-
pected lawbreaker. Typically, this practice is enployed without
a warrant and with less than probable cause. Usually the practice
involves holding a person and some of his property--an automobile,
for example--for the purpose of interrogation without making an
arrest. Obviously, this law enforcement technique poses a
persistent problem for civil liberties.
The "stop and frisk" practice has been the subject of heated
controversy and has come under judicial scrutiny as to its
constitutionality. Montana currently has no statutory authority
for stop and frisk, perhaps because the practice ordinarily is
sought for large urban areas and is not so easily justified in
more rural states. An example of a stop and frisk statute can
be found in New York. That statute, enacted in 1962, authorizes
a police officer to stop a person in a public place for brief
questioning if the officer has reasonable suspicion that the
person has committed a felony or one of a number of specified
misdemeanors. In addition, the officer can frisk the suspect
for a weapon if he reasonable suspects danger to himself. ^^
The most controversial aspect of this practice is the fact that
searches can be conducted in instances where there is less than
probable cause. In 1968, the U.S. Supreme Court wrestled with
this problem in two cases. In the first of these, Terry v. Ohio,
the court upheld the practice of stop and frisk even when employed
without probable cause. In doing so, the court ruled that the
police must secure a warrant whenever practicable, but that to
reouire a warrant in all cases would be unreasonable. Whether a
search and detention is justifiable rests on whether the officer
acted with reasonable prudence. The guidelines and circumstances
which the court announced for determining this reasonableness
for a search include:
(a) Though the police must whenever practicable secure
a warrant to make a search and seizure, that procedure
cannot be followed where swift action based upon on-the-
spot observations of the officer on the beat is required.
(b) The reasonableness of any particular search and
seizure must be assessed in light of the particular
circumstances against the standard of whether a man
of reasonable caution is warranted in believing that
the action taken was appropriate.
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PRIVACY AND ITS INVASION
(c) The officer here was performing a legitimate
function of investigating suspicious conduct when
he decided to approach petitioner and his compan-
ions .
(d) An officer justified in believing that an indi-
vidual whose suspicious behavior he is investigating
at close range is armed may, to neutralize the threat
of physical harm, take necessary measures to determine
whether that person is carrying a weapon.
(e) A search for weapons in the absence of probable
cause to arrest must be strictly circumscribed by
the exigencies of the situation.
(f) An officer may make an intrusion short of arrest
where he has reasonable apprehension of danger before
being possessed of information justifying arrest. ^^
An indication of the grounds for a reasonable seizure also was
offered:
(a) The actions of petitioner and his companions
were consistent with the officer's hypothesis that
they were contemplating a daylight robbery and
were armed.
(b) The officer's search was confined to what was
minimally necessary to determine whether the men
were armed, and the intrusion, which was made for
the sole purpose of protecting himself and others
nearby, was confined to ascertaining the presence
of weapons. 2^
Justice Douglas dissented from the opinion for one reason at
some length:
I agree that petitioner was "seized" within the
meaning of the Fourth Amendment. I also agree that
frisking petitioner and his companions for guns was a
"search." But it is a mystery how that "search" and
that "seizure" can be constitutional by Fourth Amend-
ment standards, unless there was "probable cause" to
believe that (1) a crime had been committed or (2) a
crime was in the process of being committed or (3) a
crime was about to be committed .... Had a warrant
been sought, a magistrate would, therefore, have been
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PRIVACY AND ITS INVASION
unauthorized to issue one, for he can act only if
there is a showing of "probable cause." We hold
today that the police have greater authority to
make a "seizure" and conduct a "search" than a
judge has to authorize such action. We have said
precisely the opposite over and over again.
In other words, police officers up to today have
been permitted to effect arrests or searches without
warrants only when the facts within their personal
knowledge would satisfy the constitutional standard
of probable cause. At the time of their "seizure"
without a warrant they must possess facts concerning
the person arrested that would have satisfied a
magistrate that "probable cause" was indeed present.
The term "probable cause" rings a bell of certainty
that is not sounded by phrases such as "reasonable
suspicion." Moreover, the meaning of "probable cause"
is deeply imbedded in our constitutional history. . . .
The infringement on personal liberty of any "seizure"
of a person can only be "reasonable" under the Fourth
Amendment if we require the police to possess "prob-
able cause" before they seize him. Only that line
draws a meaningful distinction between an officer's
mere inkling and the presence of facts within the
officer's personal knowledge which would convince a
reasonable man that the person seized has committed,
is committing, or is about to commit a particular
crime. "In dealing with probable cause, ... as
the very name implies, we deal with probabilities.
These are not technical; they are the factual and
practical considerations of everyday life on which
reasonable and prudent men, not legal technicians,
act". . . .
To give the police greater power than a magistrate
is to take a long step down the totalitarian oath.
Perhaps such a step is desirable to cope with modern
forms of lawlessness. But if it is taken, it should
be the deliberate choice of the people through a
constitutional amendment. Until the Fourth Amendment,
which is closely allied with the Fifth, is rewritten,
the person and the effects of the individual are beyond
the reach of all government agencies until there are
reasonable grounds to believe (probable cause) that a
criminal venture has been launched or is about to be
launched.
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PRIVACY AND ITS INVASION
Apparently only a few states have stop and frisk statutes;
however, the practice is fairly widespread and may even be
employed in Montana, despite the lack of statutory authorization.
Several alternatives exist for a state constitutional provision
on the matter. Stop and frisk could be expressly authorized,
prohibited or authorized only to the extent necessary to discover
a concealed weapon. 29 whatever choice is made, the question
of probable cause lies at the heart of the matter.
Montana's Search and Seizure Provisions
The Montana Supreme Court on several occasions has interpreted
the search and seizure provisions of Article III, Section 7
of the Montana Constitution. In 1912, the court acknowledged
that "because [the search warrant] ... is a process subject
to much abuse, it has in this country generally been limited
in its use by constitutional restrictions."-^^ A host of state
cases have dealt with the requirement of probable cause, the
definition of unreasonable searches and seizures and waiver of
the right to be free from unreasonable searches and seizures.
In 1969, the court ruled unanimously that an improper search
warrant renders any information obtained inadmissible in court.
In doing so, the court said:
[A] search is lawful or unlawful when it starts and
does not change that character from its success ....
Thus a search unlawful in its inception is not
validated by what it turns up. 31
In announcing that the exclusionary rule applied to illegal
searches and seizures, the court said:
Here entry into defendant's residence was accomplished
by means of a void search warrant. Irrespective of
whose testimony among the State's witnesses is accepted
as to the events and their sequence following the
opening of the door in response to Officer McDowell's
knock, one fact is crystal clear--Of f icer McDowell had
the void search warrant in his hand and used it as
authority for entry into defendant's residence. An
entry accomplished by means of void process is an
illegal entry. ^2
Citing Mapp, the court went on to say:
Evidence secured as a result of an illegal search
and seizure is not admissible in evidence at the
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trial of a person charged with crime in a state
court. ^-^
In addition to these court rulings, the legislature has enacted
statutory provisions embellishing the constitutional provisions
of Article III, Section 7 on searches and seizures. These
statutes, of course, remain subject to the state and federal
constitutional provisions; they are found in Chapter 7 of Title
95 of the Revised Codes of Montana, 1947. Section 95-701 author-
izes searches and seizures as an incident to a lawful arrest,
with the consent of the person to be searched, by authority of
a valid search warrant and "under the authority and within the
scope of a right of lawful inspection granted by law." Other
sections define the scope of a search incident to an arrest, the
scope and grounds of a search warrant, the procedure to be fol-
lowed in executing the warrant and procedures for handling any
property seized. Section 95-1806 of the Codes outlines the
procedure for a motion to suppress illegally seized evidence
at a trial.
WIRETAPPING AND ELECTRONIC SURVEILLANCE
It is not difficult to find diverging opinions on the use and
potential abuse of wiretapping and electronic surveillance.
Those supporting the use claim it is an essential or at least
very effective tool for law enforcement. From the opposite
side come replies such as that of Justice Douglas:
The truth is that wiretapping today is a plague on
the nation. It is a far more serious intrusion on
privacy than the general writs of assistance used in
colonial days. Now all the intimacies of one's
private life can be recorded. This is far worse than
ransacking one's desk and closet. This is a practice
that strikes as deep as an invasion of the confessional . 34
Both wiretapping and electronic surveillance have a long history,
being used during the Civil War by the Blues and the Grays to
intercept military secrets. So common was the practice by the
end of the nineteenth century that Illinois and California had
enacted statutes prohibiting telephone wiretapping. ^5
In 19 27, a wiretap case reached the U.S. Supreme Court. 36 This
case is discussed at some length as it contains most of the
critical questions of the wiretap debate. The question
at issue was whether the use of evidence obtained by tapping
a private telephone conversation was a violation of the
Fourth and Fifth amendments to the U.S. Constitution. The
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PRIVACY AND ITS INVASION
phone tap had been used by federal agents in Seattle to enforce
the National Prohibition Act against what was alleged to be a
conspiracy to imoort large quantities of liauor into the country.
In conducting their investigation, four federal authorities tapped
several telephone lines; in fact, the core of the prosecution's
evidence was gathered in this manner. During the trial, the
evidence was admitted in the form of stenographic notes; it was
not recorded on tape. The defendants objected to the admission
of the evidence, saying wiretapping violated the Fourth and
Fifth amendments. The Washington District Court and the Ninth
Circuit Court of Appeals both held that such was not the case
and that the information could be used as evidence; the U.S.
Supreme Court agreed with the lower courts by a 5-4 decision.
Chief Justice Taft, writing the majority opinion, said it was
significant that the interception of the message was "made with-
out trespass upon the property of the defendants." He said tne
taps were not made within the homes of the defendants, but were
made along the course of public telephone lines. 37 jn an amicus
curiae brief, the Pacific Telephone Company, American Telephone
and Telegraph Co., U.S. Independent Telephone Association and
Tri-State Telephone and Telegraph Co. argued that the telephone's
function was to enable two persons to converse privately as if
they were together personally and that "a third person who taps
the lines violates the property rights of both persons then using
the phone and of the telephone company as well [emphasis added]. "^^
Comparing the use of a wiretap to the strictly prohibited instance
of invading communications by mail, the companies argued:
The telephone companies deplore the use of their
facilities in furtherance of any criminal or
wrongful enterprise. But it was not solicitude for
law breakers that caused the people of the United
States to ordain the Fourth and Fifth Amendments
as part of the Constitution. Criminals will not
escape detection and conviction merely because
evidence obtained by tapping wires of a public
telephone is inadmissible, if it should be so held;
but, in any event, it is better that a few criminals
escape than that the privacies of life of all the
people be exposed to the agents of the Government . .
. . Writs of assistance might have been abolished by
statute, but the people were wise to abolish them by
the Bill of Rights. 39
The court majority did not agree with that position, however,
and argued:
The United States takes no such care of telegraph
or telephone messages as of mailed sealed letters.
The Amendment does not forbid what was done here.
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PRIVACY AND ITS INVASION
There was no searching. There was no seizure.
The evidence was secured by the use of the sense
of hearing and that only. There was no entry of
the houses of the defendants .... The language
of the [Fourth] Amendnient cannot be extended and
expanded to include telephone wires reaching to
the whole world from the defendant's house or
office. 'ihe intervening wires are not part of his
house or office any more than are the highways
along which they are stretched.'*^
The majority opinion continued saying Congress could protect
the secrecy of telephone messages by legislation, but that the
court could not do so within the Fourth Amendment. Thus, the
court accepted the argument of the government brief that
if . . . obtaining evidence by tapping wires is
deemed objectionable governmental practice, it may
be regulated or forbidden by statute, or avoided
by officers of the law, but clearly the Constitution
does not forbid it unless it involves actual
unlawful entry into a house. 41
Four justices, brandeis and Holmes among them, dissented
strongly from this opinion. Justice Holmes, answering the
government's brief contention that the language of the Fourth
Amendment applied only in cases of actual trespass, said: "I
fully agree that Courts are apt to err by sticking too closely
to the words of a law where those words import a policy that
goes beyond them."^^
His contention suggests the 1886 Boyd decision counseling
"liberal construction" of the Fourth Amendment. ^^ Holmes also
argued that although criminals should be detected, the govern-
ment should not engage in unlawful violations of privacy to
get evidence. "We have to choose," he said, "and for my part
I think it a less evil that some criminals should escape than
that the Government should play an ignoble part."^'^
Justice Brandeis began his now-famous dissent by noting that
the government admitted that if its practice of wiretapping were
deemed a search and seizure under the Fourth /Unendment, it
would be barred as unreasonable and would not be admissible.
Seeing that the government's argument was based on a strict
interpretation of the language and history of the Amendment,
Brandeis went to considerable lengths to show the occasions on
which the Constitution had been interpreted in ways probably not
envisioned by the Founding Fathers. He relied mainly on cases
in which the court itself had refused to place overly literal
interpretations on due process clauses and stressed that
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PRIVACY AND ITS INVASION
a principle to be vital must be capable of wider
application than the mischief which gave it birth.
This is peculiarly true of constitutions. They are
not ephemeral enactments, designed to meet passing
occasions. They are, to use the words of Chief
Justice Marshall "designed to approach immortality
as nearly as human institutions can approach it."
The future is their care and provision for events
of good and bad tendencies of which no prophecy can
be made. In the application of a constitution,
therefore, our contemplation cannot be only of what
has been but of what may be. Under any other rule a
constitution would indeed be as easy of application
as it would be deficient in efficacy and power. Its
general principles would have little value and be
converted by precedent into impotent and lifeless
formulas. Rights declared in words might be lost in
reality.
When the Fourth and Fifth Amendments were adopted,
"the form that evil had theretofore taken," had been
necessarily simple. Force and violence were then the
only means known to man by which a Government could
directly effect self-incrimination. It could compel
the individual to testify — a compulsion effected, if
need be, by torture. It could secure possession of
his papers and other articles incident to his private
life--a seizure effected, if need be, by breaking
and entry. Protection against such invasion of
"the sanctities of a man's home and the privacies of
life" was provided in the Fourth and Fifth Amendments
by specific language. But "time works changes, brings
into existence new conditions and purposes." Subtler
and more far-reaching means of invading privacy have
become available to the Government. Discovery and
invention have made it possible for the Government,
by means far more effective than stretching upon the
rack, to obtain disclosure in court of what is
whispered in the closet. '*5
Brandeis went on citing other court decisions and concluded;
From these decisions, it follows necessarily that
the Amendment is violated by the officer's reading
the paper [a transcript of a wiretap] without a
physical seizure, without his even touching it;
and that use, in any criminal proceeding, of
the contents of the paper so examined — as where
they are testified to by a federal officer who thus
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PRIVACY AND ITS INVASION
saw the document or where, through knowledge so
obtained, a copy has been procured elsewhere —
any such use constitutes a violation of the Fifth
Amendment . ^ °
Perhaps the most famous statement from his dissent best sums
up his position:
The protection guaranteed by the [Fourth and Fifth]
7\mendments is much broader in scope. The makers
of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recog-
nized the significance of man's spiritual nature,
of his feelings and of his intellect. They knew
that only a part of the pain, pleasure and satisfac-
tions of life are to be found in material things.
They sought to protect Americans in their beliefs,
their thoughts, their emotions and their sensations.
They conferred, as against the Government, the
right to be let alone--the most comprehensive of
rights and the right most valued by civilized men.
To protect that right, every unjustifiable intrusion
by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a
violation of the Fourth Amendment. And the use, as
evidence in a criminal proceeding, of facts ascer-
tained by such intrusion must be deemed a violation
of the Fifth. '^'^
Holmes and Brandeis were joined by Justices Stone and Butler
in dissent.
In 1935, Congress responded to the decision by enacting the
Federal Communications Act. Section 605 of the act made it
unlawful for any person to intercept or divulge the contents
of any communication unless authorized by the sender. ^8 Federal
agencies, especially the Justice Department, immediately inter-
preted the statute to prohibit only both interception and
divulgence; one or the other by itself would not violate the
statute, according to their reasoning. According to Senator
Long, the Department of Interior and other federal agencies
engaged in taps after the act as a routine means of law
enforcement.^^ Thereafter, Presidents Roosevelt and Truman,
concerned v;ith national security during IVorld War II, issued
memorandums giving the attorney general discretion to use
wiretaps and electronic surveillance on anyone suspected ob
being subversive. The memorandums requested that the investi-
gations be kept "to a minimum and be limited insofar as possible
to aliens [emphasis added], "^0 This approval of wiretapping
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PRIVACY AND ITS I^A/ASION
in cases of "national security" continues today, although the
Federal Corrjnuni cations Act prohibits any information gained
thereby from being admitted as evidence in a trial.
In 1937, the U.S. Supreme Court ruled to this effect in Kardone
V. U.S. -'■^ The court said information obtained as a result of
a tap was inadmissible in federal court. 52 7^ subsequent decision
in the same case reaffirmed this ruling and added to it the
"fruit of the poisonous tree" doctrine; ^-^ in order for evidence
to be acceptable in a court, it had to be secured from independ-
ent sources and had to be free from the taint of a wiretap. ^4
All this v.'as lost on advocates of potential invasion of privacy
by other electronic means. A line of Supreme Court cases
developing through World War II to the present holds that wiring
an informer for sound is not an unreasonable search and seizure. ^^
On the other hand, an example of the use of electronic surveil-
lance equipment that does constitute an unreasonable search and
seizure is the case in which a "spike mike" is driven into the
wall of a home. 56 It seems, hov/ever, that the Federal Communi-
cations Act, as interpreted, does not protect against the use
of wired informers and hidden microphones, even if they are carried
into a private home.
More recent U.S. Supreme Court decisions have further outlined
the issues of proper and improper electronic surveillance. In
1967, the court held that information obtained by electronic
surveillance would be inadmissible as evidence unless these
conditions were satisfied: (1) authorization had to be obtained
from a court of competent jurisidiction; (2) strong probable
cause that a crime had been or was being committed must be
established, and (3) the necessity for immediately obtaining
the evidence must be stipulated. Without these conditions, the
defendant's rights under the Fourth and Fifth amendments had
been violated. ^7
In the same year, in Katz v. U.S. , 58 the Supreme Court acknowledged
the above-discussed dissenting opinions in the 1927 Olmstead
case and extended the Fourth Amendment to cover oral statements.
In doing so, the court held that the physical trespass required
by Chief Justice Taft in the majority opinion of Olmstead no
longer was controlling. In the Katz case, the FBI, had used
electronic listening and recording devices on a public telephone
booth frequented by the defendant. Consistent with its doctrine
that the entirety of an individual's surroundings were protected
from invasion, the court aisallowed admission of the information
obtained.
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PRIVACY AND ITS INVASION
On the heels of these two decisions and the disturbances
following the assassination of Martin Luther King, Congress
enacted Title III of the Omnibus Crime Control and Safe Streets
Act of 1968.^^ This act sets severe civil and criminal penalties
for all surveillance not expressly authorized by the act. The
attorney general of the United States or his designated deputy
can seek authorization for interception from a federal judge
of competent jurisdiction. Certain "emergency situations" —
"conspiritorial activities" involving "national security" or
activities related to organized crime — can permit interception
prior to a proper court application.
The application for an interception authorization must include:
(1) the identity of the officer making the surveillance; (2) a
statement of facts establishing probable cause that a crime is
being committed; (3) a description of the nature of the surveil-
lance; (4) a description of the place of surveillance; (5)
the identity of the person whose communications are to be inter-
cepted; (6) a statement concerning other investigative procedures
and why they cannot be employed, and (7) a statement of the
period of time of surveillance. ^0 The judge receiving the
application may grant authorization if three facts have been
established: Tl) probable cause that surveillance will uncover
evidence of the specified crime; (2) normal procedures are of
no avail, and (3) probable cause that the place under surveillance
is likely to be used in connection with the offense.
The statute also provides for the style of the court order, for
the suppression of unauthorized or improper surveillance, for
notification of the person under surveillance within ninety days
and for recovery of civil damages in cases of improper surveillance,
Since the enactment of Title III, the Supreme Court has ruled
that in all cases of electronic surveillance, the defendant
has the right to inspect all information obtained to determine
if it made a substantial contribution to his prosecution. If
the evidence offered is not independent in origin or free of
the taint of illegal electronic surveillance, it cannot be
accepted in court. The court believed that the defendant's right
to scrutinize the fruits of electronic surveillance and his
possible subsequent objections to their admission were the only
ways a court could rule on the information when it was offered
as evidence. ^2
Montana and Electronic Surveillance
Section 2516(2) of Title III of the Omnibus Crime Control Act
oermits state legislatures to grant power to the attorney general
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PRIVACY AND ITS INVASION
or to principal prosecuting attorneys of the subdivisions of
the state--including citios--to seek court authorization for
electronic surveillance in conformity with the Crime Control
Act. A long list of offenses for which such authority is
available is given in that section: murder, kidnaping, gambling,
robbery, bribery, extortion, dealing in narcotic drugs, marijuana
or other dangerous drugs and other crimes.
Montana has several statutes pertaining to electronic surveillance,
Section 94-3321, 94-3322 and 94-35-200 of the Revised Codes of
Montana, 1947, deal with telegraphic communications, prohibiting
their disclosure or alteration by persons or devices. Section
94-3203 prohibits any person from tapping telephone or telegraph
lines by any means. Two other sections (94-35-274 and 94-35-275)
prohibit reproduction of a conversation by hidden electronic or
mechanical means. The first of the two (274) stipulates that
reproducing conversation by such means is a misdemeanor; the
latter (275) states that the former (274) does not apply to public
officials in performance of duty or to public meetings.
In the 1971 Montana Legislature, the Senate killed a bill which
would have authorized the attorney general and the fifty-six
county attorneys to engage in electronic surveillance. In
general, the bill was similar to the Omnibus Crime Control Act.^-^
As a result, only federal authorities have power to engage in
electronic surveillance in Montana at present.
The Controversy
Arguments for and against wiretapping authorization perhaps can
best be seen in a detailed reading of the congressional debates
on Title III of the Omnibus Crime Control Act of 1968.64 when
Title III came out of committee to the floor of the U.S. Senate,
an effort was made to specifically prohibit all wiretapping and
eavesdropping at the state level. The rationale behind this
effort was that the authority granted to states to enact wiretap
laws was too broad--that it could permit even city attorneys
to seek authorization for wiretapping for a list of offenses
which was too open-ended (crimes dangerous to life, limb or
property and all crimes punishable by imprisonment of one year
or more). 6^ Senator Long had printed in the Congressional Record
a tabulation of the crimes for which states could secure
wiretaps; the list covered a full page.°° Long argued this was
much too broad a grant of authority to state officials.
Arguments offered by proponents of wiretapping and electronic
surveillance are several. Some contend that law enforcement
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PRIVACY AInjD its INVASION
officials should be free to use all modern scientific aids to
apprehend criminals. Attorney General Mitchell is in favor
of electronic surveillance and believes it to be one of the most
effective tools of modern law enforcement;^^ former Attorney
General Ramsey Clark believes it should be strictly limited to
use at the federal government level in cases of national secu-
j.ity.68
Additional arguments for wiretapping authority include: it is
the only means for uncovering organized criminal activity and
official corruption; other methods of detection are more
expensive in dollar terms, and adequate safeguards can be built
into the wiretap authorization procedure.
Arguments against such authorization include: wiretapping is
a grave violation of the right of privacy considerably more
heinous than the colonial writs of assistance; especially at
the state and local levels, wiretapping authority is subject
to considerable abuse, requirements for court orders and
probable cause notwithstanding; wiretapping is necessarily
indiscriminate, despite all possible safeguards, in that it
intercepts all conversations on a given line or in a given
place regardless of their connection with any suspected criminal
activity; and excerpts taken out of private conversations
easily can become distorted in meaning and, tlierefore, be
misleading .
Both sets of arguments deserve much more detailed assessment
before any solution should be considered."^
The Solution
Several resolutions of the wiretap controversy at the level of
the state constitution are possible. The Maryland Constitutional
Convention of 1968 proposed the following provision (Section
1.05) to meet the rule set forth in the Katz decision discussed
earler :
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable
searches, seizures, interceptions of their communi-
cations , o r other invasTons of their privacy , shall
not be Violated, and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized or the communications
sought to be intercepted. [New changes are underlined] .
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PRIVACY AND ITS INVASION
This provision is similar to Article I, Section 12 of the Florida
Constitution, which provides:
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable
searches and seizures, and against the unreasonable
interception of private communications by any means,
shall not be violated. No warrant shall be issued
except upon probable cause, supported by affidavit,
particularly describing the place or places to be
searched, the person or persons, thing or things to
be seized, the communications to be intercepted, and
the nature of evidence to be obtained. Articles or
information obtained in violation of this right
shall not be admissible in evidence.
The New York Constitutional Convention of 1967 proposed a more
detailed provision [Art. I, Sec. 4], which included the
exclusionary rule:
The right of the people to be secure against
unreasonable interception of telephone, telegraph
and other electronic communications and against
unreasonable interception of oral and other com-
munications by electric or electronic methods shall
not be violated, and no order for such interception
shall issue but upon probable cause supported by
the non-delegable, personal oath or affirmation
of the attorney general or a district attorney ana
the affidavit of a person having personal knowledge
of the facts, showing reasonable grounds to believe
that evidence of a particular crime or information
leading to the apprehension of the perpetrator
thereof may be thus and not otherwise reasonably
obtained, and particularly describing the person or
persons whose private communications are to be
overheard and the place and reason for such inter-
ception.
Such an order may be issued only by the presiding
judge of the appellate division in the judicial
department where it is to be executed, or by one
associate judge thereof designated by the presiding
judge for such purpose, or by one supreme court
judge so designated in each judicial district.
Orders or warrants issued pursuant hereto shall be
limited to a reasonable period of time, and no such
order shall authorize an interception except as
permitted by statute.
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PRIVACY AND ITS INVASION
Evidence obtained in violation of this section shall
not be admissible in any judicial, legislative or
administrative proceedings.
The New York proposal was defeated with the rest of the revision
package. Article I, Section 12 of the New York Constitution
therefore stands as adopted in 19 38:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, sup-
ported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
The right of the people to be secure against unreason-
able interception of telephone and telegraph communi-
cations shall not be violated, and ex parte orders or
warrants shall issue only upon oath or affirmation that
there is reasonable ground to believe that evidence of
crime may be thus obtained, and identifying the par-
ticular means of communication, and particularly
describing the person or persons whose communications
are to be intercepted and the purpose thereof.
Another alternative — which could also be directed at all elec-
tronic surveillance--is the outright prohibition of wiretapping
contained in Article II, Section 10 of the Puerto Rico Con-
stitution: "Wiretapping is prohibited."
Wliatever kind of solution is considered, the potential for
abuse of an electronic surveillance authorization is immediate
and clear. If there is certainty that such an authorization
could be frozen into the state constitution without violating
constitutional rights of privacy, there is yet another line of
questions that must be answered: Does Montana need wiretap
authorization? Are the crimes for which such authorization is
soucht--organized crime and crimes against the national security-
more properly federal matters or, at least, more peculiar to
more urbanized states? Whatever the resolution of the issue,
if it is as divisive an issue as the Gallup Poll seems to indi-
cate, it might best be placed on the ballot separate from the
body of any new constitution.''^
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PRIVACY AND ITS INVASION
RIGHT OF PRIVACY
In 1890, Louis Brandeis and an associate, Samuel Warren,
noting that "social and economic changes entail the recognition
of new rights" and that the common law is in "eternal youth,"
announced that "the right to life has come to mean the right
to enjoy lifG--the right to be let alone; the right to liberty
secures the exercise of extensive civil privileges . . . . " ^^
Eighty years later this "right to be let alone" or the "right-
ful claim of the individual to determine the extent to which he
wishes to share himself with others and his control over the
time, place, and circumstances to communicate with others "^2
is one of most compelling issues in the civil liberties field.
A contemporary reversal on the right has been accomplished to
such an extent that a 1928 dissenting opinion of Justice
Brandeis is now much-accepted; it is also praised as "the most
celebrated judicial statement of the privacy protections."^-^
As Brandeis put it:
The makers of our constitution undertook to secure
conditions favorable to the pursuit of happiness . .
. . They conferred, as against the government, the
right to be let alone--the most comprehensive of
rights and the right most valued by civilized man.^'*
Those statements of Brandeis, crucial as they were to the contem-
porary development of the broad right of privacy, are by no means
the earliest indications of that right. Early hints of a legal
right of privacy are found, for example, in a compilation of the
Oral Law of Ancient Israel collected around 200 A.D. The medi-
eval political philosopher, Maimonides, declared in 1180 that
"the harm of being seen in privacy is a legal wrong." More
interesting is the fact that the Roman word "injuria" had a
meaning as "the willful disregard of another's personality;"
similarly, the Greek "contumelia" had a meaning as "the infringe-
ment of another." From these and other sources the potentially
broad concept of privacy takes its meaning. ^^
There was, apparently, no recognition of an enforceable right
of privacy in the writings of the seventeenth and eighteenth
century English political philosophers, and some believe there
were no significant early developments in English history or
the common law dealing with the right. If this is true, the
right would not be typical of most American rights, which were
derived more or less directly from English law.
The 1890 Brandeis-Warren essay mentioned above "has come to be
regarded as the outstanding example of the influence of legal
periodicals upon the American law."^^ Several commentators
-237-
PRIVACY AND ITS INVASION
have credited it with adding a new chapter to the law and with
having initiated a new field of jurisprudence. The core of the
argument in the essay is the necessity of a legal protection
of the right of privacy. Brandeis and Warren argued that such
a right did exist in the common law of England but that it was
misunderstood as a property or contract right. That they are
on the right track is indicated by E. F. Roberts who states:
Within the context of the [Industrial] Revolution,
the idea that a home was a castle had little enough
to do with civil liberties of privacy in any personal
sense. It v/as an economic idea in the sense that the
castle syndrome was part of a particular ideology
structuring the society upon incipient laissez-faire
lines .... Thus it is that the house was sacrosanct,
not in terms of privacy per se, but as an island of
unregulated industry which formed the nucleus of the
incipient Industrial Revolution then brewing. ^^
More imoortant, Brandeis-Warren urged that such a right should
be extended beyond the protection of such tangibles as have
the attributes of property to the right of peace of mind in
the security of "intangible factors of life."'^
Largely in response to this essay, the right of privacy has
grown to the point where it is recognized in well over half
of the states. Montana is among those states.'^ A recent
Montana decision of the right of privacy and self-incrimination,
approvingly cites a 1947 Montana case which said:
"The common law has always recognized a man's home
as his castle, impregnable, often, even to its own
officers engaged in the execution of its commands"
. . . . The "right of privacy" is embraced within
the absolute rights of personal security and personal
liberty .... The basis of the "right of privacy"
is the "right to be let alone" and it is "a part of
the right to liberty and pursuit of happiness . . .
80
In the 1947 case, the court also acknowledged:
[T]he type of cases in which the right of privacy has
been recognized vary so widely that it might be con-
cluded that this supposed right is nothing more than
a catch-all to take care of the outer fringes of tort
and contractual liability, and that it is not the
product of any underlying general principle. The
typical privacy cases are those involving the display,
sale, or publication of one's portrait, the public use
of one's name, oppressive publicity in connection
with the collection of debts, and v/iretapping and
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PRIVACY AND ITS INVASION
Other forms of eavesdroppinq . Superficially, these
cases may seem to involve entirely different princi-
ples and considerations. Yet there is a pervading
element, common to all the cases, of outraging one's
feelings by depriving him of the privacy which most
normal persons desire and have a right to demand,
whether this deprivation is effected by publishing
one's name or picture in an advertisement or by
tapping one's telephone line or installing a
detectophone so as to listen secretly to one's
conversation with family or friends. °-'-
One author noted that the "decisions of the [U.S.] Supreme
Court involving the right to privacy or containing extensive
references to that right have been part of the staple fare
of constitutional litigation for many decades. "^^ However,
the author of this statement evinced little satisfaction with
the way the court had interpreted the right. He said: "in
short, the right to privacy now means nothing more than a
diminishing protection against unreasonable searches and
seizures . "°^
All this was changed, however, when, in a 1965 decision,
Griswold v. Connecticut, the U.S. Supreme Court recognized a
federal constitutional "right of privacy" independent of the
explicit guarantees of the Bill of Rights. In holding uncon-
stitutional a Connecticut statute forbidding the use of, or
counselling the use of, contraceptives, the case used the
previously discussed penumbra doctrine. The opinion stipulated
a right of marital privacy that is found in the penumbras of
various provisions of the Bill of Rights. These "rights of
privacy and repose" and "zones of privacy" are said to "emanate"
from the First, Third, Fourth, Fifth and, more especially, the
Ninth amendments to the U.S. Constitution. ^'^
The main features of the court-delineated right of privacy
can be seen by reviewing some of the decisions made under the
various amendments mentioned in Griswold. Under the First
Amendment, the court has articulated a right of privacy in
association. This notion was used to strike down membership
disclosure requirements imposed by Southern states on certain
unpopular political organizations, notably the National
Association for the Advancement of Colored People (NAACP).°^
A notion of "political privacy" also has evolved in response to
the impertinence of certain congressional investigations . ^^
The right to remain silent may be expanding, given recent
Supreme Court decisions invalidating compulsory flag salute
requirements and reading of the Bible in public schools.^'
The Fourth Amendment has been applied to protect the privacy of
the person and his home from unreasonable intrusions and seizures,
-239-
PRIVACY AND ITS INVASION
This right to the security of one's privacy against arbitrary
intrusion by the police is now binding on the states. The
Fourth Amendment right of privacy also has some bearing on
electronic surveillance, as was discussed in tlie essay on
wiretapping and other electronic interceptions of communications.
The applicability of the Fifth Amendment to the right of privacy
is still in the dissent stage. Several justices liave held that
the Fifth Amendment, especially when coupled with the Fourth,
extends a cloak of privacy to all private communications and
that it makes any interception by electronic devices unaccept-
able.^^ This point also was discussed in the essay on wire-
tapping .
The contemporary situation that reinforced the direction of
these decisions and the heightened concern in the area of
privacy merits mention. Certainly the concern over some more
formal expression of the right has intensified. As has been
noted:
[A]t the time of the Warren Brandeis article . . .
the methods available for the invasion of privacy
were, comparatively speaking, only in their infancy.
"When Warren and Brandeis wrote in 1890, it was the
unseemly intrusions of a portion of the press into
the privacy of the home that was emphasized as the
main source of the evil . . . the potentialities
for this character of wrong are now greatly multi-
plied."89
Unpredictable progress in the development of surveillance
instruments and devices stands at the head of the concern; a
sizeable outpouring of literature on the uses of various devices-
from the telephone tap to the newer methods of electronic
eavesdropping has spread this concern to the public. The
potential abuses of vast quantities of information about
literally millions of American are causing increased alarm.
Couple this with the increased use of computers by government
and industry and the question recently asked by one commentator
becomes relevant:
Should we not be concerned about a computerized
federal data center that could collect, store and
distribute information about everyone of us? Al-
though the data may be acquired in a Constitutionally
sound fashion, its use could present the greatest
threat to our remaining right to individual privacy.^
In addition, there is a mounting predisposition in the behav-
ioral sciences to gather raw data for research. It is alleged
that
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PRIVACY AND ITS INVASION
increased accessibility of data would provide better
inde?standing of the interdependencies within our
pluralistic society, leading to better informed
choices among alternative programs and policies and
mS?e effective implementation of programs. Extensive
utilization of raw data in the areas of manpower
skills, population concentration, transportation
natterns, health services and criminal activity,
would enable the government to evaluate, improve,
and expand existing services.
subsequent to this overstatement of the potential application
of behavioral science data to alleviate ---^^P-^i^^l^ ^^
i^ admitted that "these advantages . . . are accompaniea uy
thei^er-increasina intrusion into the private personality
of our citizens."^
Thus there is good reason to consider the possibility of
IncLding a provision on the right of privacy in the state
inciuaing d p p^^rently, two states have such provisions:
Article I ??'secSon8,';f the Arizona Constitution and Article
T section 7 of the Washington Constitution both read: No
lerToTlZll be disturbed in his private affairs - his home^^^^
irthf Co::iirte^ :f nSf i tlATof the^srutrcaroima constitu-
tion in 1965: "The right of the people to be secure from
un?easSnable invasion of privacy shall not be violated. ihe
cS^?t?2e in recommending that "the citizen be given constitu-
ttS^al pritection from an unreasonable invasion of privacy by
the State," said:
This additional statement is designed to protect
the citizen from improper use of electronic devices,
computer data banks, etc. Since it is almost impos-
sible to describe all of the devices which exist or
which may be perfected in the future, the Committee
recommends only a broad statement of policy, leaving
the details to be regulated by law and court decisions.
Alan Westin, one of the most perceptive commentators o" ^he
iiaht of privacy, has suggested a broad statement of the right.
"iS r^ghfio privacy of persons, communication, and associ-
.^Von shall not be abridged." This provision leaves much
lat??u5e for ?he courts ?o define the right more extensively
if addftion! Sestin is quite explicit -/^f ^^^f,/ .^.^^^"that
to privacy provision in the state constitution. lie states tnat
although
it is hard to see what would be gained in real
terms by'a'new declaration of [the] right of privacy
-241-
PRIVACY AND ITS INVASION
by [federal] constitutional amendment . . . given our
traditions of more detailed and more frequently revised
state constitutions, and in light of the "little
laboratory" function of state lav/, such a guarantee
might well be considered. 93
In striking correspondence with the above-mentioned Greek and
Roman understanding of injury as an invasion of the personality
is the right personality recognized in German law. Two
articles in the 1949 West German Constitution state the principle.
Article I (1) reads: "The dignity of man shall be inviolable.
To respect and protect it shall be the duty of all state author-
ity." Article 2 (1) reads: "Everyone shall have a right to
the free development of his personality, insofar as he does not
infringe the rights of others or offend against the constitutional
order or the moral code."
-242-
CHAPTER VII
NOTES
1. Richard L. Perry, Sources of Our Liberties (Rahway: Quinn
& Boden, 1959), p. 304. Cited hereafter as Perry, Our
Liberties . See Appendix D for the provision.
2. See William S. Hodsworth, A History of English Law, 4th ed .
(Boston, 1938), X: 667-668. Cited from Ibid.
3. Blackstone's Commentaries on the Laws of England, 9th ed .
(London, 1783), IV: 291. Cited from Ibid. , p. 305.
4. Perry, Our Liberties, pp. 305-306.
5. Ibid. , p. 423.
6. Boyd V. U.S. , 116 U.S. 616, 635 (1886).
7. E. F. Roberts, ''The Right to a Decent Environment: Progress
Along a Constitutional Avenue," Law and the Environment,
ed. Malcolm Baldwin (New York: Walker and Co., 1971), p. 135
Cited hereafter as Roberts, "Decent Environment."
8. Mapp v. Ohio, 367 U.S. 643, 670 (1961) (concurring opinion).
9. Weeks v. U.S. , 232 U.S. 383 (1914).
10. Wolf v. Colorado, 338 U.S. 25 (1949).
11. Ibid . , p. 27. It should be noted that during that time,
judicial restraint was considered "the prime virtue of
enlightened judges." Roberts, "Decent Environment," p. 137.
12. Mapp V. Ohio, p. 660.
13. Roberts, "Decent Environment," p. 139.
14. Ibid. , p. 136.
15. Elkins v. U.S. , 364 U.S. 206 (1960).
16. Lucius J. Barker and Twiley W. Barker, Civil Liberties
and the Constitution (New York: Prentice-Hall, 1970), p. 239.
17. Brinegar v. U.S. , 338 U.S. 160, 175-176 (1949).
18. Harris v. U.S. , 331 U.S. 145 (1947) and U.S. v. Rabinowitz,
339 U.S. 56 (1950) .
-243-
19. Notes, "Search and Seizure Since Chimel v. California,''
Minnesota Law Review 55 (1971); 1012. Cited hereafter
as Notes, "Search and Seizure."
20. Chimel v. California, 395 U.S. 752 (1969).
21. Notes, "Search and Seizure," p. 1029.
22. Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965).
23. Camera v. Municipal Court, 387 U.S. 523 (1967); See v.
City of Seattle, 387 U.S. 541 (1967).
24. New York Code of Criminal Procedure, Sec. 180-a.
25. Terry v. Ohio, 392 U.S. 1 (1968).
26. Ibid. , p. 3.
27. Ibid.
28. Ibid. , pp. 35-38.
29. Hawaii, Legislative Reference Bureau, Article I: Bill of
Rights , Hawaii Constitutional Convention Studies (Honolulu
University of Hawaii, 1968), p. 72. Cited hereafter as
Hawaii, Article I.
30. State ex rel. Streit v. Justice Court, 45 Mont. 375, 382,
123 P. 405 (1912) .
31. State V. Langan, 151 Mont. 558, 567, 445 P . 2d 565 (1968).
32. Ibid. , p. 567.
33. Ibid. , citing Mapp v. Ohio.
34. William O. Douglas, The Right of the People (New York;
Doubleday and Co., 1958), p. 151. The writs of assistance
were discussed earlier in the essay on searches and
seizures .
35. These two states passed wiretap statutes in 1895 and
1905, respectively. This fact, plus the general out-
line for what follows, was taken from a summary of the
dilemmas of wiretapping and surveillance written by
John B. Dudis, Jr., "Electronic Surveillance: New Law
for an Expanding Problem," Montana Law Review 32 (Summer,
1971): 265. Cited hereafter as Dudis, "Electronic
Surveillance. "
-244-
36. Olmstead v. U.S. , 277 U.S. 438.
37. Ibid. , pp. 456-457.
38. Ibid. , p. 454.
39. Ibid. , pp. 454-455.
40. Ibid. , pp. 464-465.
41. Ibid. , p. 452.
42. Ibid. , p. 469.
43. Boyd V . U.S., 116 U.S. 616 (1886).
44. Olmstead v. U.S. , p. 470.
45. Ibid., p. 473.
46. Ibid. , p. 478.
47. Ibid. , pp. 478-479.
48. For the text of this enactment, see 47 U.S.C. Sec. 605
(1934) and Dudis, "Electronic Surveillance," text supra
note 7 at p. 266.
49. Senator Edward V. Long, The Intruders, supra note 1 at
p. 138. Cited from Dudis, "Electronic Surveillance,"
p. 267.
50. Ibid. , p. 89.
51. Nardone v. U.S. , 302 U.S. 379 (1937).
52. Ibid. , p. 382.
53. Nardone v. U.S. , 308 U.S. 338, 341 (1939).
54. Ibid.
55. See Goldman v. U.S. , 361 U.S. 129 (1942); Log v. U.S. ,
343 U.S. 747 (1952); Osborn v. U.S. , 385 U.S. 323 (1966) ,
and U.S. v. White, 39 U.S.L.W. 4387 (April 5, 1971).
56. Silverman v. U.S. , 365 U.S. 505 (1961) and Clinton v.
Commonwealth, 204 Va . 275, 130 S.E.2d 437 (1963).
57. Berger v. U.S. , 388 U.S. 41 (1967).
58. Katz V. U.S., 389 U.S. 347 (1967).
-245-
59. 18 U.S.C.A. Ch. 119, Sec. 2510-2520.
60. Ibid. , Sec. 2518.
61. Ibid. , Sees. 2516, 2518, 2520.
62. Alderman v. U.S. , 394 U.S. 165 (1969).
63. House Bill 384, 42nd Session, 1971 Montana Legislature.
See further, Dudis, "Electronic Surveillance, ' pp.
274-275.
64. 114 Congressional Record, pp. 14706-14745 (1968). Cited
hereafter as 114 Cong . Rec .
65. The legislation introduced into the Montana Legislature
in 1971 v/ould not have permitted city attorneys to secure
tap authorizations, nor did it apply to crimes endangering
only property. See House Bill 384, 42nd Session, 1971
Montana Legislature.
66. 114 Cong . Rec . , pp. 14707-14708.
67. Congressional Quarterly Weekly Report, Feb. 17, 1971,
supra note 55 at p. 430. Cited from Dudis, "Electronic
Surveillance,'' p. 277.
68. Ibid.
69. See New York, Temporary State Commission on the Consti-
tutional Convention, Individual Liberties: The Admin-
istration of Criminal Justice (New York, 1967), pp.
87-92. Cited hereafter as New York Temporary Commission,
Individual Liberties.
70. See Dudis, "Electronic Surveillance," p. 277, where he
notes that an August, 1969 Gallup Poll "found the nation
divided on wiretapping, with 46 percent favoring the
practice, 47 percent opposed to the practice, and 7
percent undecided."
71. Samuel Warren and Louis Brandeis, "The Right to Privacy,"
Harvard Law Review 4 (December 1890) .
72. Adam Carlyle Breckenridge, The Right to Privacy (Lincoln:
University of Nebraska Press, 1970), p. 1.
73. New York Temporary Commission, Individual Liberties, p. 108.
74. Olmstead v. U.S. , 277 U.S. 438, 478 (1928).
75. Samuel H. Hofstadter and George Horowitz, The Right of
Privacy (New York: Central Book Co., 1964), pp. 9-10.
Cited hereafter as Hofstadter, Privacy.
-246-
76. William L. Prosser, "Privacy," California Law Review 48
(1960): 383.
77. Roberts, "Decent Environinent , " p. 144.
78. Hofstadter, Privacy, p. 19.
79. See, for example, Welsh v. Pritchard, 125 Mont. 517,
241 P. 2d 816 (1947) .
80. Welsh V. Roehm, 125 Mont. 517, 524, 241 P . 2d 616 (1947).
Cited in State v. Brecht, 28 State Reporter 468, 473
(May, 1971) .
81. Ibid.
82. William M. Beaney, "The Constitutional Right to Privacy,"
Supreme Court Review (1962): 212.
83. Ibid.
84. Griswold v. Connecticut, 381 U.S. 486 (1965). For the
Ninth Amendment application, see the concurring opinion
of Justice Goldberg and the unenumerated rights essay
below.
85. See, e.g., Louisiana ex rel. Gremillion v. NAACP , 366
U.S. 293 (1961); NAACP v. Alabama, 357 U.S. 449 (1958).
86. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 255
(1957); Watkins v. U.S. , 354 U.S. 178, 198-199 (1957);
DeGregory v. Attorney General, 383 U.S. 825, 829 (1966).
87. West Virginia Board of Education v. Barnett, 319 U.S.
624, 642 (1943), and School District v. Schempp, 374
U.S. 203, 319 (1963) (Stewart, J., dissenting).
88. See, e.g., Osborn v. U.S. , 385 U.S. 323, 340-354 (1966)
(Douglas, J., dissenting); Lopez v. U.S. , 373 U.S. 427,
463-471 (1963) (Brennan, J., dissenting).
89. Hinish v. Meier & Frank Co., 113 P . 2d 438, 447 (Ore. 1941),
Cited in Bernard Schwartz, A Commentary on the Constitu-
tion of the United States, Part III (New York: MacMillan
Co. , 1968) . p. 173.
90. Jerry M. Rothenberg , The Death of Privacy (New York:
Random House, 1969), preface. For other discussions of
the invasions of the right of privacy, see Alan F. Westin,
Privacy and Freedom (New York: Atheneum, 1967); Edward V.
Long , The Intruders: The Invasion of Privacy by Government
and Industry (New York: Frederick Praeger, 1966) .
-247-
91. Hawaii, Article 1, pp. 73-74.
92 South Carolina, Committee to Make a Study of the South
Carolina Constitution of 1895, Final Report (Columbia:
Statehouse, 1969), pp. 14-15.
93 Alan Westin, "Science, Privacy, and Freedom: Issues &
Proposals for the 1970' s," Columbia Law Review 66
(1966): 1231.
-248-
CliAPTER VIII
Kr:\^i^ONr>i]iMTAL p-otection
IMTROUUCTIOH
111 mosL O'^ tlic areas discussed to tiiis point, reference has
bee/i made to tra: attituucs of tiic Founding Fathers or to
colonial coricom a! -out cc;rtain rigUtG. iiovever, in the area
of conscicuticnal environncntalisn, no such fjeneral reference
ca.i Li_ nndc. The draftsmen of tne Constitvition , v/ith vast
areas of unexplored land at hand, uid not feel the press of
ecoloyical concern and consequently gave scant attention to
tiio possibility of environmental rigiits. Likewise, it has
LeeU noLco:
[V]a(_ exploitative approach tov/ard nature is reflec-
ttru ill botii the coi.ipenaiun of statutes ana judicial
ueeisioiis that juake uo th.e body of Anglo-7vraerican
la\; concerned with natural resources, ana in the
atti.tudes and oraer of priorities which the bench
anu oar nave brought to bear on legal questions re-
lating to the environment. T.ie habit of subordin-
ating the long-tena consequences of uiicon trolled
exploitatioii of nature to short-tena profits or
ir.micdiate econoiaic needs is deeply engrained in tlie
Airicriean etiios aiid, indeea, iii that of mankind as a
v/jiolc . -'-
That is not to say there iias been no concern v:ith the environ-
"lent tiirougiiout Aintrican iiistory; in fact, a strong under-
current of ecological thinking lias been a part of ?u;ierican
intellectual history at least since the Transcendentalists of
the late nineteenth century. In another sense, the American
Indians had a surprisingly well-developed environmental sensi-
bility that remains incomprehensible to most Americans. 2
Jrom those and other sources, the new move for the recognition
of citizen rights iii tne protection of the environi.ient takes
its cue. ijccause a constitution provides a law liigner anu
more f uriuamental that statutes and an expanding bulwark even
a majority cannot easily overrun, it is not surprising that
enviroiUuental issues snould press for constitutional recogni-
tion .
Tnree of the issues treated below concern the constitutional
enunciation of the citizen's right to a healthful environment,
citizen, access to tiie judicial process to compel the observance
of environ;. lental quality and tne power and rignt of eminent
uomain.
-249-
iJi J V T POu f 'lu , JT AL P I'.O'rU CT I O! i
LIJVIRONILLiNTAL iiILL OF RIGuTS
Tiie citizt_n's riyiit to a Healthful environnent is the new
substantive provision nost frequently auopted by states in
recent constitutional revision. Albert Stunri nas v;rittcn
tnat at least ei^jnt states have aclopteu sorr.e provision
guaranteeinc tne ricjh.t: auring tne last five years . -^ In
writing on tlie scope of a right to a habitable environment,
two coi iineiitators iiavc liste^^ tv/o functions such a riijht p.:ignt
perform :
First, it shoulu set liiaitr. , sir.iilar to tnoLje in tlie
Bill of Ricfiits, beyond Wiiicn even a Majority could
not tiuapor with tne enviroruiient . . . . Secoiid,
such a right siioula give all interestea parties tne
opportunity to participate effectively in political
and econoi.iic decision-making processes which, inui-
viaually or collectively, iiave a substantial iraijact
on tiie environment. [e:.''phasis tncirs].^
i^ffective participation in decision-n ahii:g processes wliich af-
fect the environment is the subject of the ne:;t essay. The
constitutional declaration of the citizen's right tO' be a
nabi table environment is the subject of this essay.
;;oruing of the sort uiscusseu in this essay is exemplified by
Article XI of tne Illinois Constitution. -Section 1 of that
article announces the public policy of the state and the uuty
of each person "to provide and maintain a liealthful environr^ent
for the benefit of tiiis ana future generations." Tlie same
section also nroviues for lugislativo ir.plcr'.entation anu en-
forcement of tiie [>ublic policy. Section 2 is more: importan L
for these concerns:
L. ve ry P4£_s_on _l^ia_s _tiie rigxit to a healthful uiiviron-
rnent. i.,acn person may enforce this poTTcy agains L
any r:)arty, goverrjuental or private, tiiroucrh ar^^ro-
priate legal proceeuings subject to reasonable
iimiua Lions and regulations as tne General /\ssembly
laay proviae uy lav; [empjiasis auuedj .
■'.any commentators writing on the constitutional riciit to a
iieaiunfui enviroiimcnt have notca the i)Ossi iyili ty of LiCriviiu;
tiie rigiiL Lo a iiealLhlui, UiuJuiiioL. environruMit from Llu^
(j;.iL;Ling b.;i. C\>ii!; Li LuLiou . .'.ueii an ar(,um(;nt replies on
searching ouL Liie i;iiplicatit;ii.s ol :it_veral tjf Lne c;.i)iiciL aiui
et-riveu rigiits anu eiieir juuicial ii.ti. rpretaLion; j lore impc;r-
Lunt, it reucs on varicjus Lneories ef thu JiiiLn A: Lniij.ienL
-250-
Lii:VIROiO:iLNTAL PP.OTECTIOn
v.'.iicjii at^aiL of ricjuts not in any way lii'.iteu or ucniuu Ly the
explicit yuarantecs of tnc Bill of Rights. A brief look at
tills reasoiiing iielps illuiainate the bounds of an environ-
luenLal riy^it ane its connection with tiie otiier explicit
riyatt. of cii>_ civil liLierties trauition. For exai;;ple, iJva nanhs
argues it v.oulu not ue an undue extension of the Fifth /Ar.iend-
inent protection against deprivation of life, liberty and
proj^erty to interpret it as protecting against tiie use of
uefoliants, the exj'osure of the citizenry to excessive
radiation and the failure of the federal governraont to stop
air ;)oliution. ;hie argues that
the yoverniaent could not cons ci tutionallv order that
every resiuent of, say Kansas City, be put before a
firing squad, nor for that matter every hundredth or
thousandth resiuent selecteu at randora. If we change
tne r.ietnou of execution from the firing squad to slow
arsenic poisoning, the result is the sayr.e. T]\e jump
from these clear cases to a constitutional right to
ue protected against the hazards to health and life
from technology and pollution, inflicted bv govern-
ment or v/itl: government approval, is short and ob-
vious . -■
i:. F. Roberts takes note of the long developing concept of tiie
right of privacy ana uses the ex6uaple of a man com.fortably
musing over nis right to be left alone as he sits in front of
ills picture window overlooking the lake. If, as Roberts
postulates, tne i.ian r.iust looJi through a maze of electric wires
to view tlie lake that has been turned brown by sewer effluents
or super-iieatee by thermal pollution; if he must brusii the
uust of a newly ouilt cement plant from his stereo set before
turning it up to urov;n out the noise of jet aircraft; and if
this only serves to remind him of a new high-rise apartment
coiaplex being built on the last natural spot abutting the
lake, nis nev;ly founu rignt of privacy miay be "really a sop
thrown him in order better to let iiim enjoy his coming imprison-
micnt in the castle soon to be besieged all around by an unin-
iiabitable environment."^ That is, the right to be insulateu
luay not be a valuable protection in any estimation; v;hat may
be requircu is some form, of protection that insures a healthy
environment so that a "protected castle" '.>7ill be wortn living
in.
It is also arguca tnat tlie iJintii /jr.endment "uncnum.erateu rignts"
aoctrine is a possiuie source for tr.e right to a healthful
environment. Lva lianJcs points out that "all other rights are
meaninyless without it."' And according to Justice Goldberg
in the driswold case, nev.' riyiits can be founu in the unenum.erated
-251-
:;wviRONrii;;jTAL pi'.otection
rignts aoctrint; if one looks to the "traditions anti [collective]
conscience of our people to deteriviine whether a principle is so
rooted [there] as to be ranked as fundamencal. " " To sur\ up this
line of reasoning it is saiu that "there is, after all, iio right
to life divorcea froiri a possibility of existence."^ Tuat is,
the inalienable right to life and the due process right to life,
liberty and property guarantee that their prercquisi to--a health-
ful environment--bc not destroyed.
The final answer to tiie question whetlier the f undar.iental lav; of
the Araerican legal system ir.plicitly recognizes the right to a
uoibitabl.^ eiivironr.ient , still is unclear, but seens to be yes.
Lven if it is no, hov/ever, the issue of its explicit recocriition
in the states' funuaneiital lav/ remains the saire.
Various proposals have been offercu for the wording of sucli a
right. Tiie previously citee Illinois provision is only one ex-
ariple. The recently proposed Idaho Constitution [Art. I, Sec. 1]
placed the citizen's right to have his environment protected in
the inalienable rights section, together v/itii the More traditional
rigiits to life, liberty, property, and another ne\; rignt, privacy.
The California ?isserably Select . Committee on Lnviroruaental Quality
recommended that the California legislature place on the ballot
a constitutional an^endment to effect an Environh.ental ijill of
Rignts. Tiie tentative draft reads:
lu is iiereby declared to be the policy of the State
of California and a matter of statev/ide concern to
develop and maintain a iiigh quality environm.ent in
oruer to assure for the people of the state, nov; aiiu
in tiie future, clean air, pure v/ater, freedom from
excessive noise, ana enjoyment of scenic, iiistoric,
natural and aesthetic values. The Legislature siiall
enact legislation to in.plement the provisions of
this article, and not\%?ithstarjding any other provision
of this Constitution, i,:ay m.a];c sucli legislatioi.
applicable to any state agency, to anv charter or
general law city, city and county, or county, and
to any district or other local actencv.-'-^
A more detaileu provision recently approved on a statev/iue
ballot in Riioue Islaiio stresses not only the conservation--
"v/ise use"--of tiie natural resources of tiie state, but also
lays eii'pnasis on tiie maintenance of tiie natural environi.ient.
It is founa in Article I, Section 17 of tiie Riioue Island
Constitution :
Tiie people siiall continue to enjoy anu fi-eely exer-
cise all tlie riglits of fishery, and tiie privileges
of tlie siiore, to v/liicli they iiave been iieretofore
-252-
i.uVIK(JiJ/:L.iTAL PKOTLCTION
entitled u:iuer the charter anu usacjcs of thirs state;
and tiicy shall be secure in their rights to tiie use
a;»u enjoyiTicnt of tiie natural resources of the state
\vitia uuc regard for the preservation of their values;
ana it shall be the euty of tlie general asserably to
provide for the conservation of the air, lanu, water,
plant, animal, mineral and otner natural resources of
tiie state, ane to adapt all means necessary and proper
by IcA-: to protect tiic natural environrr.cnt of tne people
of the state bv proviuing adequate resource planning
for tne control and regulation of the use of the
natural resources of the state and for the preservation,
regeneration ana restoration cf the natural environment
of the state.
Anotiicr proposea woruijig for an en-t-ironniental bill of rights,
wnicii also specifically nientions preservation, is that of
students at the Nortiiwestern University Law School. It in-
cluaes four main points: (1) an inalienable right to a clean
environment; (2) a grant of power to the legislature to pass
laws necessary to buy and preserve land in a wila state; (3)
the pov^'er of reeress for a citizen if his environiuent is
aaversely affectea by tiie government or any other person,
corporation, firm or association, and (4) the power of a citi-
zen to challenge any governmental action in which tlie govern-
ment coula not Snow tiiat its acts woula not auverselv affect
1 1 ic w n V i r o 1 ;mvL n t
11
The Ciicice of v;ord3 here may be in^.ortant. To use a tcrru
sucii as "accent" may not offer the judiciary much guidance ana,
as pointed out by nanks , may confront tiie court v;ith a jo>^ it
has properly rcfusea to perfor:n.l2 V;ording of the sort v/uic'i
would be ajr.cnable to tiiC aoiv.ission of competeiit , technical
tcstirony v.'oula ijc a ''iicaltiiful environment." To orient the
rigiit v.o\ ard some rcgaru for the preservation of the natural
attriijutes of tiie eiA'iroru.ient , the v/ores "uiisullied environ-
ment" would probably serve the purpose. Periiaps the strongest
woraing would be a cor.ibination of the tv;o.
Oiie eoi.imentator , Jojeph IJa;:, has sri.id tiiat altnouijii tiie consti-
tational recognition of the riglit to a decent cnvironmeiit woula
ue token our good intentions and lielp to set before us a goal
towara Wiiiea our society ougiit to aspire, ' iL woule ije
naive te ijelieve that any sucii declaration coula be a
Suj^sticute for tiic ar»_ary tas;. of dealing vritii tiie
envirOi.m.eni.al problem tnat mu.jt be met ane resolved
aaily ii. a tiiousana inaiviaual cases. in itself, a
consticucional a...endment v;ould save not a single wet-
lanu or forest; it v/ould remove no cement plants or
-253-
LN VI RON: I1..1JTAL P ROTECT I ON
autoaiobilc exhausts; anu it wouia clean no
strear.is. . . . An essential question tiiat r.ust be
asked whenever proposals for an environr!:ental aacla-
ration oi ricjats are raised is whetlier those rights
arc going to be enforceable, anu if so, by wiioii. Ti.e
valut of moral pressure snould not be ignored; but
its importance iii enforcing those rights depends to
a great extent on the context in wiiich the declaration
is r.ia»ae. Fifty years ago ... a declaration of tiie
rigiit of the puople to clean air and water n.ignt have
represented a araiaatic step forward. Toeay , iiov/evcr,
one would nave to search far and wiue to find anyone
unwilling to endorse tiie sentiiaents [of a typical
constitutional righ.t to an uns'joiled environnxnt] . •'-■^
Sax concluues:
[I]f the purpose of [eeclaration of the rigiit to a
decent environment] . . . v/ere to encourage aunin-
istrative agencies to adopt the viev; that they
have environmental responsibilities, the ueclaration
woule coiv.e late in the gamc--that was yesterday's
Dattle. ... So long as an official thinics that
ne is tiiinking environmentally, a declaration is not
liiiely to change things percentibly . 1'^
Most environiiicnLal writers iiavc made similar points. That
raises tae most important question: If an environmental bill
of rights is placeu in the constitution, wao will l.)e able to
enforce it, anu against wlio!'. can iL be enforced?
bnf orcei.ient of an Environmental Bill of l^ignts
Several alternatives exist concernijig the enforcement of consti-
tutional ''environn-ental bill of rigiits" provisions. In the case
of the California and Rliodc Islane provisions, the legislature
provides the impetus for enforcement. In the case of the Illi-
nois provisions, tiiose of the iJev/ York Constitution anu tliose
proposed by stuuents at Kortiiv.'estern University lav scaool, the
legislature iias certain enforcement obligations anu citizens
also are grantee powers of eiiforcement . Anotlier alternative is
tnat ij.iplicit in provisions liJie tliose of the i^'roposeu Tdano
Constitution or taose currently incorporated in /Article II,
Section 7 of tiie Floriua Constitution, wnere it is not entirely
clear who can ej;force tlier.;. Vuiat follows ir. a diseur.sicjn of
legislative enforcement of general environmental duality provi-
sions anu tlie possibility of supplemental citizen enforcement,
particularly the access a citizen has to tlie judicial process
-254-
L.N VI RON-flEWT AL P ROTLCT I ON
Lo ^ccj; crdcn; ccii'i uliiiuj public a-jcncics , private cjroups, in-
di vi(..Uc;l:i aiic corporaLions to ol^scrvc cr.vironr cntai equality
3 Lai;aaruL. .
i^iiunciatioi. of ciiViron)i''.cntal quality safcquarus is aln.oGt cer-
tainly au ir.iiorcut part of legislative pov.'er. Taat iii, no
expiicit coi.niiiitutioiial delegation of authority in this area
is necessary beyond the general delegation of law-making authority
specified, for exai.iple, in Article V, Section 1 of tae Ilontana
Constitution unless sucn a aelegation is intenued to JDe n-.anda-
tory. Several states have found sucn a mandatory delegation
of envirorj^ental quality standard-setting authority to be ad-
visable. ..'ording of ti^is sort provides the legislature v/ith
an affin^ative euty to protect tae environiricnt . -'■^ State
legislatures across tne country hrive performed this function
with varying degrees of coiir.itiaent and success by enacting sta-
tu\:eo aesigned to mouerate man's inpact on the environment.
For exai'iplo, th<^ Ilontana legislature has passee water and air
pollution Control, i.iine reeloination, and otncr statutes in-
ciui..in*j cii. inivironri.^-iiuai Policy Act [Revis>jd Coues of ."lontana,
iJ-i'I, ^uc. 0j--bij03j v/hicii declares it state public policy
in cooperation with t/.c federal governncnt and local
govt;rnri.ents, anu oLner concerneu puulic and private
organizations, cc use all practicable means and
r.easures ... to foster and pronote the general
welfare, to create and maintain conditions under
V7i.icn ip.an anu nature can coexist in productive har-
moiiy ....
j-'/ie act also syji_cifics ways such a policy can be implemented,
stressing such tilings as recycling, indiviuual responsibility
ana population balance.
Tiie e-:ti_nt: to \v..icn any legislaturc-'-rieeting periodically--
laust rely cii tae executive branch of government also is re-
flectee in tiic act. General directions and guidelines are
laiu aov.n to further clarify tiie intent. 'i'liis type of re-
liance on adv.iinistrative agencies--ctue in part to the
iiicreasiiu^ complexity of society and tlie issues dealt v;ith--
\;'as uiscusseu briefly earlier in tiie essays on Separation of
Pov/ers and Safeguards in Acurdi'.is trative Procedure. Such a
cielegation of pov;er---of ten fori"nidable power--creatcs a per-
sistent dilei-.aTia for decision-raxing in dem.ocratic govcrniTient.
On tiie one naxiu, a continuing effort of centralized i;ianage-
went anc planning is esseiitial in oruer to cope v/ith the
uay-to->^ay problems ccnfror^ting state governments. On the
otner nanu, "bureaucracies grev; up to do tlic v/ork and planning,
and aecisions touching the vital interests of the comm.onwealth
are i.iac.c in rooms ir.sulated from tlie voice of the people. "IC
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ENVIRONMLlsiTAL PROTECTION
Tiie tension created for any democratic society is that funda-
mental policies can be inade by sr.all professional groups,
larcely free froia outside c.iecks . Theoretically, at least, in,
a uer.iocratic republic the basic decisions are r:aue in public
by representatives chosen by the voting public. Auninistra-
tive agencies are, schematically speaking, one steo removed
from tiiat public; practically speaicing, the connection betv/een
t.ie agency anu tiie citizen often ir, remote. Tiie public concern
over the magnitukicj aiul ir.nctiiacv of the probloi of nrevcnLing
pollution and tn^' ocl; LrucLioii o1 natural resources also is
reelected in LIkj creation o' ac»ra nis trati vc^ agencies whos(.>
uriiicijjal uuty i:; to protect the environrni nL . Al'clioUgii the
siiape and potential of tiiese agencies is not yet clear, at
least one coiUucntor has noted that "they often lacJ; the re-
sources to monitor all potential threats to the environment
anu to respona to tnen v/iti. speed ana effectiveness.''-'-'
Anotner commentator has criticized tiie Ilontana i'^nvironmental
Protection Act in this fashion:
It is urged by this author that while the L.P.A. em-
bodies a coiomenaable statement of policy, tiie Act
is entirely too discretionary. After r.aking its
studies, the Council merely recommenas to anotiier arm
of government ana then hopes that action will result.
The people of Montana need more tiian recommendations;
they neeu something v/hicn will comrcl comjiliance v;ith
tiie policy propounaed by the E.P.A. Witiiout any coi:i-
pulsory language, the "enjoyable liarm.ony between man
ana nis environment" is notiiing more than a lofty
iaeal ana tne Environmental Quality Council \;oulu
appear to exist lucrely to appease tnc environmcn-
talisus.12
If tiiis kina of criticism ij true of tlie a'^er.cics s;:ccif icaliy
createa to iaanale environmental proljlemr, , it j rcjuably is safe
to assume tiiat otuer administrative agencies witiiin the execu-
tive urancii also will not iiave the resources or pov/cr to assure
a general agency commitment to the enliancem.cnt of the natural
environment. Suci: an incapacity lias been widely noted. 1'^ Ii:
ans\.-er to tnis dilemr:.a ana tlie fear tiiat adi. inistrative authority
may be too aiscrctionary , an increasingly accepted tlieory has
called for some sort of citizens' rigiit to compel tne obser-
vation of environmental quality. In siiort, enforcement rigiits
supplementary to tlie statute-making autiiority of tiie legisla-
cure ana tiie stanaard-setting autiiority of aoi linis trative agencies
are increasingly at issue. Accoreing to tiie Second Zuinual lie-
port of tiie feaeral government's Council on i.nvironmental
'Quality, "recent [state constitutional] proposals [on environ-
r.iental protection] focus on tiie individual's riglit to
-256-
ENVIRONMENTAL PROTECTION
environraental protection and raise ^^^ Jf jj-^j^^^j;,,f ..^o"
creasea resort to tne courts to vindicate that rigat.
Kxapples of this kind of activity can be founa in several state
constifutLns, ana statutes and i- a%l--^ -^'eanli; Ac^'in
^ec^ioSioJ ?-^?ef ^Selr^d; f^ d^S^nf iSdi^ d^^X g. ens
boei.^en-s^cLrof so^e-^^^ ^^iiK/iS . tiis a^^^^
tSee ?hapSr IX, on sovereign immunity). A ^^"l^^^^^PP^f ^J..
is a par? of the Micnigan Environm.ental Protection Act of 1970.
iegLlaJion similar to'tne Michigan act was P-sed in May of
1971 in Connecticut. Citizen suit statutes ^1^° ^ave been
aaopted in Indiana and Minnesota. 22 a new ^°^^t^^^^^^°"^J^
araeSoment in New York [Art. XIV, Sec. 4] ^-"^JJ^^^^J^^^"^^^"
policy "to conserve and protect its natural resources ana
scenic beauty." The state legislature is dirccteu to carry out
tae policy section V of the same Article permits _ citizens to
rest?ati aAy violations of the Article. ^^-^ ' . ^^f ^f ^[l/^^.te • s
seek an injunction to halt Possible transgressions of the state
public policy of environmental quality. The ^1,1^;°^%^°^^^^
?ution also grants individual environmental rights. Section
1 of Article XI declares a state public policy to maintain a
healthful environment:
The public policy of the State and the ^-^^y of each
person is to provide and maintain a healthful en
?iroSment for^he benefit of this and future genera-
tions. The General AssemJjly shall provice by law
for the implementation and enforcement of this
public policy.
section 2 of the same Article deals specifically with the rights
of individuals:
Each person has the right to a healthful environ-
ment. Each person may enforce this right against
any party, governmental or private, througn ap-
propriate legal proceedings subject to reasonable
limitation and regulation as the General Assembly
may provide by law.
What these provisions have in con^on is ^heir grant of standing
to the individual to enforce through the judicial process cer
tain obligations. Thus, the traditional grounds for denying
tnaS the litizen is the proper party to prosecute a suit not
baseu on personal property damage is ^-Pl^-^^^l' ^^HSeirieS
is not to say that there were ^^ver available legal theories
wnich individuals could use in an effort to ^^^^ activities
which aaiuaged less tangible interests of the environmental
quality sort.
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ENVIRONriEiITAL PROTECTION
A brief discussion of legal tiiecries currently available for
inuividual suits against alleged polluters; is in oracr. It
nas been noted tuat it is tne con>n'on lav/, v;hich l/arren and
3randeis said was in "eternal youth, "23 that v/ill in all
probability continue to give much of the shape and direction
to private environraental la'./ suits for a nunber of years to
corae. ^4
In the main, there are three legal theories that arc fairly
well-developea and have had frequent aprjlicntion in pollution
suits: negligence, trespas:;, and nuisance. Tiie r.ost ample
of the three is negligence , dealing simply with alleged care-
lessness. A person sues, arguing that the dcfcauant did not
exercise sufficient care in certain activities and that the
person being sueu is therefore responsible for aaiaages sus-
tained. In this type of suit, the person suing bears the
buraen of proving tiiat the polluter was careless; he nust
snow that the acts of the polluter did not cone up to the stan-
dard of care which a reasonable person would have followed.
In addition, tne injuries sustained nust be shown to be the
result of those actions for which proof of carelessness is
established. Questions arise quickly from this doctrine; for,
example, does "care" require that a polluter use the latest
and most advanced pollution abatement devices? There seems to
be a trend in this direction. ^5
Trespass is one of the oldest rigiits of action in the lav7.
Liability for dar.iages is created when there is entrance, per-
sonal or otherv.'ise , onto tne land of another. Although one
need not prove any carelessness in this kind of action, the
plaintiff must prove that the person being sued deliberately
caused the entry. In pollution cases based on tres[;ass alle-
gations, the courts diu not have much difficulty in dealing
with visible pollutants; such was not tlie case for gases wliich
were toxic or merely odorous, hov;ever. A concept of indirect
trespass iias further embellisher this cause of action.'-^
Concerning the third type of act ion- -nuisance --two leading
attorneys in the field state:
The law of nuisance is one that no lav/yer in his
right miind would wanr. to discuss for his fcllov/
lav/yers let alone the layman. It has been called
the most confusing of all tiie tort areas of the
law and defies simplification . 27
Despite tlie complexity of the nuisance action, it is the most
commonly used theory for environmental legal actions. A general
idea of what nuisance entails can be seen in tne definition
of nuisance as unreasonable interference v/ith the interest a
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ENVIR0NI4ENTAL PROTECTION
person has in the enjoyment of property. An additional distinc-
tion between kinds of nuisances is those which involve private
da^Tiage to personal property rights and those wnich involve
private d£U".age to the general public. In general, for a pri-
vate person to sue for the abatement of a public nuisance, he
must suffer more daiwage than the general public. This is the
limitation on the applicability of this kind of suit to the
abatcraent of pollution. Under such a theory, if all are
daiuaged about equally, there is no cause of action. Although
tnis type of action appears at first to be ideal for anti-
pollution suits, it is only the person directly damaged who can
sue in the case of a private nuisance; in the case of public
nuisance, one must often prove damages of a different kind,
not merely of a different degree, than those sustained by the
public in general. ^^ Thus, "it ha.^ been the conventional rule
that the public's right to abate a nuisance may be enforced
only by public authorities ." ^°
It may seem soir.ewhat of a let-down at the end of this brief
discussion of current legal theories available for actions to
cite an author who notes that: "Unfortunately, private liti-
gation has hitherto been of limited effectiveness in the fight
against pollution. " ^^ Hov/ever, his criticism, is not arbitrary
and cannot be ignored. It is supported by other writers in
the field, some of whom offer a more damning indictm.ent . ■^■'-
Eva Hanks has gone so far as to say:
The jucge-made coiamon law as a legal mechanism for
the protection of the environment can be dismissed
at the outset as trivial in its breadth and inef-
fective in its application. The historical comm.on-
law rem.eay for environmental degradation is tiie
private nuisance (sometimes negligence or trespass)
action. . . . The state of tae environment testi-
fies to the effectiveness of the remedy. 32
This dissatisfaction with the applicability of the old common-
law theories of negligence, nuisance and trespass to environ-
mental problems, coupled with the insulation of standard-setting
authority from legislative and public scrutiny, has led to the
increasing attention to the area of citizen and public interest
group standing to sue alleged polluters .
"In the current tur:noil of environmental litigation, there
are few areas so much in ferr:ent as that known as standing,"
tiic Montana Lav; Reviev; recently noted. ^^ The Review continued:
[Vj.ie rigat of the citizen to challenge actions of
the feucral government in order to protect an en-
vironi.ient nas gained an established position . . .
and . . . feasible means exist to provide standing
-259-
UN VI RONMLh'TAL P ROTECT I ON
to citizcnii to challciKjc action of otaer citizenij
on boiialt or tile public interest in the environ-
ment
J4
but in geiieral, tne above trend notwitiistanding , " ii\ the federal,
anu raost state courts, tiie inaividual citizen, ana even cjroups
of concerneu citizens, have no standing to secure judicial re-
viev; of actions threatening their public resources ." ^^ This
situation is not the product of design but reflects the fact
tnat the traditional legal renedy was one for personal dai^.ages .
To be granted standing, one generally had to shov/ personal
injury to his tangible property. In recent court cases, injury
generally no longer is confined to tangible property damage;
it extends to aesthetic, conservation and recreational interests . -^^
otanaing in the United States v/as first extenacd to the taxpayer,
permitting him to challenge municipal expenditures. Later it
was also granted to a citizen to challenge state expenditures
ana, eventually, in 19G8, was usea to cnailonge feaeral expen-
ditures. In aduition, the Supreme Court has long recognized
tnat tne "public interest" proviaes a basis for stanuing.3b
'i'iicse two consiueration3--tiie broaacning of "interest" to
include intanyiJ^les ana basiiig standing on tne public iii-
tere3t--taken together, are the source of the increasing
access to the juaiciai process for environmental protection.
Aitnough the Li.o. Supreme Court has not directly faced the
problem of standirig iii litigation for tne protection of the
environmeiit, it nas offered tv/o general standares in other
areas. Tiie tv.o tests are tliat the plaintiff shov; an "injury
in fact" ana txiat tne "interest sought to be protectca is
arguatily witnin tne zones of interests to be protectea by
tne statute or constitutional guarantee iii question ." -^^ Uith
tnc tnrust of statutory enaetmcixts being to protect the en-
viroinaeiit, increasing claims are maue tiiat taese statutes
create tne J..ina of interest v/hich permits citizen enforcenent.
Anu more ana more, "it is clear that the public interest iias
gaineu a point ol access to the aam.inistrative decision-making
process" tiirougn citizen access to trigger the judicial en-
forcement mechanir.m. '*^
Tne advantages of allowing private citizens to initiate suit
against public officials and agencies or nrivate persons are
claiiiiea by propoiicnts to be m.any . It is saia, for example,
tiaat citizens v/ho are av;are of minor or local environmental
tnreats can inaicc public such a threat by resorting to tne
juuicial process, v/iiereas a distant aam.inistrative agency mav
not iiave the resources to aetect or iiandlc tliese smaller
problei:.s . Access to tae juaiciai process also gives tne
citizen tne power to force administrative agencies to fulfill
t.ii^ir statutory auties. SueJi consiuerations were the basis
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L:-i V I ROiL" liJlMTAL P Im ■)Ti:;CT 1 ON
of a Ljuit uv a ciLizoii's comr.'.i tt(jc in Ne\.' Yor J. ' s ixudsoii
Valley i:. an effort to lialt tiie construction of an expressway
Liiere .
41
Aiiotixer ar^uneiit for citizen's suits is that a citizen coulu
iniriate a class action oii behalf of tne unorganizea majority
of citizens in oraer to protect their interests against a
well-ori-janizou lobby of minority interests. Access uo the
courts in this case could aelp connect the voices of private
inaiviuuals \/ho ordinarily have the opnortunitv to speak on
public questions Oiily at elections.
Opposition to the citizen's rigiit to Gue--especially the ex-
tension of stanuing to pcrnit suit of private groups and
corporations--iG based on two main considerations. It is
argueu tnat the courts v;ill be flooueu v/ith all manner of
suits--ii\ultiple suits, harassment suits and suits for mone-
tary uainayes. It is lielu the court system is already over-
loaued anu cannot bear the burden of numerous suits over
eiivironiaeiital luatters . because tne grants of stanuing to
citizens are a fairly recent phenomenon in the environmental
area, sucn an argument is difficult to assess. however, in
Michigan, v/here stanuing was first granted, ten suxts were
louyed in tne four months followina enactm.ent. Of these ten
four were filed by governm.ental agencies tnemselves . ^^2 on tnis
point, one conr.ientator has written:
i»ailc an increase in cases can certainly be expected
tnere is little danger of a flood of litigation when
it is remci.ibereu that the courts here, as in all
otner areas of litigation, control the gates. Tney
remain competent to screen the meritorious from the
frivolous, the genuine from tne vexatious. Tne law
to be ucvclopca will be that applied to situations
as they arise, in an area not presently conuucive to
couification because of the variables, the present
uncertainties involved, ana the overriding need for
creative anu innovative decisions. The courts are
proving their connetence in cases of judicial review
to iiear anu deciae a great variety of complex environ-
mental issues, not because of their scientific and
teciinical expertise, but because the disputes are of
Liasic anu funaai.icntal policy m.atters, requiring the
v;t;igiiing anu balancing of conflicting interests.**-^
Various juuiciai i..cchaiiisr s , sucn ar, tne refiuirement that one
complaining estabiisn a prima facie case, bonuing requirements
anu court cost allocation, could operate to deter frivolous
ajiu iiarassiny suits. Perhaps tiie greatest ueterrent to haras-
sr.cnt suiu is the aic n cost of litigation. Lnvironmeiital suit
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JNVIRONMl.iJTAL PROTLCTIOixi
costs quickly run to six figures. ^"^ The doctrines of res
judicata anu coliaberal estoppel also coulu operate to acter
p.uitipTe suits^cTa tiiC sar-.c question. ^^
Dai.iage suits--suits for iiior.etarv coiiipcnsation--are not li]:cly
to occur under Lue standiny principle. Tiie purpose of a public
suit of tills type is to restore environmental quality or aalt
environmental abuse, not to claira pergonal damages. Private
monetary reiieeio'S for monetary aamages already exist in the
coiar.ion law, iii any case.
'i'nc seconu laajor aryun.ent a>jainst extension of stanain>j Lo
tiie citizen is tnat resulting suits r.iay daiapeii interest in
inuustrial uuveioj-naent iii tue state, tnat tne poteiiLial of aii
cnvironi.icintal suie way Keep inuustrv from coi:dng into the state
by creating a climate unfavorable to acvclopraent . Against this
argument it is saiu tiiat "environment protection is becor.iing a
national concern, anu no state is likely to remain without
some restrictions on pollution and the use of natural resources.'
In other words, all states are adopting various envircnnental
restrictions to assure that inuustrial development uoes not
nave undue adverse effect on the environment. States still
are founu extenuing good will to those ineustries m.ost success-
ful in reuucing environmental damage, to inuus tries which "steer
miuale course uetv/een unthinking exploitation ana unyielding
preservation. " '^ '
In conclusion, tiie agitation for and against increaseu citii:en
rignts in tne area of environmental protection continues,
otanuing ;jills are under consideration at the federal level
anu at least nine states. '^^ The Montana legislature itself
consiaered four n:easures granting the citizen's right to sue in
its 1971 session. Although none passea, tjie ongoing nature
of tne uispute is indicated in the remarKS of the cnief spon-
sor of one of tne measures:
Citizen concern for environmental protection is not
a passing fae. Future legislatures will iiave the
opportunity to again consiuer the v/isdom anu necessitv
for siiuilar proposea legislation giving citizens
tne right to preserve and protect tne worla in which
v/e all live.'^^
Regardless of t.ie Convention action in this area tnen--whetlier
or not the broau outlines of a citizen rignt to sue for environ-
mental protection are written into the funuamental law — the
legislature still v;ould have work to do. If the Convention
ueciaes not to incluuo such a rigiit, the legislature in all
probability will again consiuer the question in 197 3.. ^^cn
if tne citizen's rignt to sue is written into tlie Constitution,
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4C
LUVIRONriENTAL PROTECTION
Liic IccjisiaLurc woulu nave to fill in statutory requirements to
supplement tiie constitutional broad outlines. For example, the
Illinois provision authorizing individual suits directs the
legislature to establish reasonable exerrptions and regulations
for suca suits.
LliliJENT DOriAILJ
I uo not believe there is any proposition that v/ill
go into tnis Constitution that is of any more impor-
tance to the people of the proposed State of Montana
than tile proposition [on eminent domain] we are now
consiuering ana I do not believe that anything tliat
has yet been suggestea or offered will obviate the
eifficulty, tiic constitutional objection to taking
tnis Ciiaractcr of property for wnat will oe uctermined
to be in all probability a private use--J. iv. Toole,
loo'J Convention
Eminent eoiuain is txie pov/er of tiie state to take private (or
public) property for public use.^O The Montana Constitution
contains t\/o provisions that outline this power. The first,
?.rticlc III, Section 14, is the tyr-'ical er inent domain provi-
sion: "Private property shall not be taken or destroved for
puijlic use v/ithout just compensation having been first r.adc
to or paiu into court for the ov.'ner." Tne second provision,
.''.rticle III, Section 15, is an explicit extension of the
uefinition of "public use:"
Tne use of all v;ater now appropriated, or tuat may
hereafter be appropriated for sale, rental, distri-
bution, or other beneficial use, and the right of
v;ay over the lands of otners , for all uicches, trains,
flumes, canals, and aqueuucts , necessary for collec-
ting ana storing the same, shall be held to be a
public use. Private roads m.ay be openeu in the manner
to be prescribeu by law, but in every case the neces-
sity of the roau, ana the am.ount of all damage to be
sustained bv tne opening thereof, siiall be first
ucLerminea oy a jury, ana such am.ount, togetiier with
tne expenses of the proceeeing, snail be paia by the
person to be benefited.
'i'i\«_se uwo provisions iiave a:i interesting iiistory. In adaition,
botii arc supplv_; i(_nteu ijy a substantial body of statutory law.
An in-acptn aiscussion of the principle of er.iir.ent domain is
beyonu tne scone of this report; a brief discussion of tne
constitutioiial iiistorv of eminent domain in the state ana a
discussioii of tiie neignteneu concern over its environmental
im.pact follov. .
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ENVIRONMLNTAL PROTECTION
Tiic lli84 Constitution contained provisionr, on ci-.inent uoi;iain.
ocction 14 of Article III proviucu:
'x'nat private property saall not be taken for private
use, unless by consent of the owners, e::cei t f(5r pri-
vate ways of necessity, ane exceyjt for reservoirs,
drains, flun.es, or di tones on or across tne lanus of
others, for agricultural, miniiig, iniliny, domescic,
or sanitary i^urposes.
Section 15 provicca:
[Pjrivate property shall not be taken or damaged for
public or private use, witnout just compensation .
Sucn compensation snail be ascertainea by a boaru of
coundssionors , of not less than three freeholders, or
by a jury, wneii required by the owner of the property,
in sucn manner as may be prescribed by law; and until
the saTi.e shall be paiu to the o\;ner or into court for
the owner, tiie property shall not be needlessly dis-
turbed, or tne proprietary rights of the owner therein
uivestcu; anu v/henever an attempt is made to take pri-
vate property for a use alleged to be public, the
question wnether the contemplated use be really public
Shall be a judicial question, and determined as such
witliout regard to any legislative assertion that the
use is public.
Tae interesting part of this provision is the assertion that the
jueiciary can ascertain whether a given use is public, and in
Going so, it can disregaru any legislative enactment defining
certain uses to be public. Tiie Coloraao Constitution from whicii
most of tne .Montana Declaration of Rights caiae , still contains
this provision in Article II, Section 15. The records of the
1889 Convention arc not coiiiplete enough to enable one to ascer-
tain the reasons for departing from tnis lb84 woruinc. T.ie
floor debutes are, however, inuicative.
As tne provision on eminent domain first came before tiie v/holc
Convention in Ibo^, it provided for just compensation for pri-
vate property taken for private use with tiie consent, of the
owner. Tne excet:/tions for wiiicii private property coula be taken
without consent \/ere "for private ways of necessity, anu . . .
reservoirs, draiiiS, flum.es, or ditcnes on or across tiie lanus
of otiiers for agricultural, mining, milling, or sanitary purposes
Delegate Marsnall of jMissoula protested tiiat tliis provision v;as
the "neiglit of despotism" anu the debate was on.^l Delegate
iiickford argued tliat "it frequently becom.es necessary in the
Territory of Hontana for private property to be taken for wiiat
is in fact a private u:ie. ..." I^eforring to "Lliafc old con-
stitutional provision iii tne Constitution ol' Lhe (Ji.iLed SLaLes,"
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EimVIRONMLNTAL protectiou
waicii proviaed in traditional language that private property
coulu not ue taken for public use without just comocnsation,
he urged the delegates to adopt the innovative principle that
private property could be taken for certain private uses . Dele-
gate Knov/les then rose and, wiiile adinittinq that tne proposed
private use provision was a "ueparture froja the ancient land
marks, ■' chargea that it was a sin-ilar aeparture for a Ncvaaa
court to have recently declared that it was a public use for a
man to sink a mining shaft on another's land witii a view to
working tiio laine uinsclf or permitting a corporation to do it.
Knowles WiU'teo the provision: to Im included in the Declara-
tion of Riglits as proposed, feeling they were necessary to
the future of the territory.
Delegate Maginnis confused the issue somewhat by agreeing
with Knowles and adding an amendment that would have placed
the corporation on the same footing as persons in the face of
eminent domain actions: "The right of eminent domain shall
not be curtailed and the property of corporations shall stand
upon the same principle as the right of persons." This type
of provisions was later incorporated as Article XV, Section
9."
Then Delegate Luce suggested that the Convention resolve the
messy issue of private use by adding a section which would
define certain uses to be public. He noted that "the courts
have always denounced the idea of taking private property for
private use, and always should, because if you open the door
for one purpose, it may be opened for all purposes, and no man
would be secure, in his property ." ^-^ Luce believed this pro-
blem could be avoided if the Convention were to stipulate
what would be the public uses for which private property could
be taken. Luce mentioned two specific uses he had in mind;
irrigation and mining.
Amid further wrangling. Delegate Toole of Lewis and Clark
stated that this was probably the most important proposition
to go into the Constitution. Noting "the difficulty, the con-
stitutional objection to taking this character of property,
for what will be determined to be, in all probability, a
private use," he successfully moved to pass consideration on
the whole matter. 54 At a later stage in the Convention pro-
ceedings, the eminent domain provisions were approved in their
current form. In the finally accepted version, condemnation
proceedings were made mandatory, and public use was defined
to include necessary roads and irrigation works. ^5
A few things can be noted from the direction the debate took.
In the first place, the delegates appear to have viewed eminent
domain as the granting of a right to the state. ^^ However,
contrary to this, it has been noted that eminent domain is a
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ENVIRONMENTAL PROTECTION
power of the state and not "merely some kind of a right reserved
by the sovereign out of the sovereign original ownership of
all lands." That is true even though there is no provision in
the U.S. Constitution expressly granting the power to either
the federal or state governments. The U.S. Supreme Court has
held that the power of eminent domain is inherent in the con-
cept of sovereignty and that it requires no constitutional
recognition. 57
In general, American and international scholars have agreed
with the court in regarding eminent domain as a principal
part of sovereignty . 5°
In addition, the Court has offered (for eminent domain) a
rationale of the kind Alexander Heunilton expressly feared in
the Federalist Papers. In an 1875 case, the Court said the
eminent domain provision of the Fifth Amendment is an implied
assertion of the power to take property with just compensation. 59
Hamilton had argued in Federalist No. 84 that there was a good
chance that a federal bill of rights would lead to the expres-
sion of governmental powers not expressly granted in the Con-
stitution. In an ironic way, his thesis has been actualized.
In any case, the power of eminent domain is expressly recog-
nized in the Montana Constitution. Article XV, Section 9
provides:
The right of eminent domain shall never be abridged,
nor so construed as to prevent the legislative assem-
bly from taking the property and franchises of in-
corporated companies, and subjecting them to public
use the same as the property of individuals. . . .
That there also are individual rights associated with eminent domain
will be made clear below.
More important than the above was the disagreement among dele-
gates as to whether the uses they were enumerating were really
public or merely private. They resolved the issue by declaring
certain of them to be public uses, such as irrigation, and, by
later statute, mining and extraction of underground natural gas
reservoirs, urban renewal projects, electric light and power
lines, flood prevention projects by cities and towns, etc. That
this solution did not really square the issue of public use
raised during the 1889 Convention can be seen from the above
debates .
60
The delegates to this Constitutional Convention will have occa-
sion to reconsider the question of whether eminent domain should
be exercised in cases which some consider to be the appropriation
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ENVIRONMENTAL PROTECTION
of private (or public) property for essentially private uses.
In such case, the uses designated as public by statute also
should be reviewed. ^1
In addition, there is considerable contemporary concern about
the environmental impact of eminent domain actions. One com-
mentator has noted in what is now a nearly universal judgment
that "the portion of the nation's land 'still in nature' has
steadily diminished." He goes on to enumerate some of the
causes :
Old cities have expanded, and new ones have been
created. Vast networks of highways, utilized by
millions of automobiles, wind their way across
the country. Complex systems of utility lines
and pipelines, which provide needed electricity,
natural gas, oil, and communication crisscross
America. These developments, however, have not
been without costs. ^^
Charles Reich has written orf the heightened public protests
against the appropriation of lands without due regard for
maintaining the quality of the environment. He argues that
these protests are a sign of the increasing trend toward
direct political action as an alternative to the regular
processes of representative government . ^-^ A member of the
American Bar Association Committee on Environmental Law has
lamented that
the world is "coming increasingly under the domi-
nation of a single ecumenopolis . It is a global
city, leaving much of the land surface vacant but
marking all open space as clearly subordinate to
urban demand."
He concludes that land has become "a rural existence waiting to
become an urban event. "64
The central concern for these three commentators and a host
of others is the appropriation of land without due regard for
environmental exigencies. And one of the principal tools by
which land is acquired for various uses is the power of emi-
nent domain. Under ordinary circumstances, any land with
particular environmental significance can be condemned.
Several alternatives--all within the general principle of emi-
nent domain--to the relatively easy taking of what may be
environmentally significant lands suggest themselves.
One of these alternatives concerns the "prior public use doc-
trine." Ordinarily, any land already committed to a public
use may not be condemned for another public use unless the
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ENVIRONMENTAL PROTECTION
alternative use is superior. To do so without such showing
requires express legislative authorization.^^ The problem
is that much privately held land which may have some environ-
mental significance does not, under current law, qualify as
a "prior public use." To these landowners falls the difficult
burden of proving that the condemnation of their land is
either arbitrary or capricious. Even in the case of a non-
profit corporation formed exclusively for the acquisition of
land for conservation and preservation, this burden is not
easily shaken. A possible remedy involves the extension of
the prior public use doctrine to cover owners of environmentally
significant land. The effect would be that if a landowner
could prove that his land was in some sense environmentally
significant, and that the taking of his land would result in
significant environmental damage, his land would be covered
by "the prior public use" doctrine and would not be subject
to condemnation for another public use.^^
Another alternative involves shifting the burden of proving
that there is no adverse environmental effect to the condemnor
in all eminent domain actions. In lieu of such proof, the
condemnor could be required to prove that no feasible and pru-
dent alternative to the taking of the property exists. This
approach already has been incorporated in several federal laws
and regulations that are designed to safeguard environmental
quality. It also is in practice in federal air and water
quality standards, in safety standards prescribed for drugs,
in the exhaust-emission control requirements for automobiles
and in an increasing number of other areas. ^^
The assistant general counsel to the National Science Foundation,
Charles Maechling, comments on a more general application of
this shifted burden of proof to the whole area of land use and
new technologies:
In the past, technological progress and resource
development were regarded as so beneficial in
themselves that a crushing burden rested on com-
plaining or injured parties to obtain legal re-
dress against their noxious or harmful side-
effects. The probably pernicious consequences
of a technical innovation as a proposed land use
were ruled out as speculative, and extensive
actual damage had to occur before there was even
a remote chance for preventive action. Recently,
however, both leaders of the scientific community
and the Chairman of the House Subcommittee on
Science, Research and Development have asserted
the need for some sort of federal review system
for new technology.
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ENVIRONMENTAL PROTECTION
Maechling notes the National Academy of Science recommendation
that it should be incumbent on the introducer of a new techno-
logical development or the proponent of a potentially damaging
alteration of the landscape to demonstrate a low level of
damage to the environment prior to such a development . ^8 The
point apparently is not to stop industrial growth, but to halt
undue environmental degradation.
Another alternative is the approach used in the Michigan En-
vironmental Protection Act of 1970.^^ Under this act, a
plaintiff is empowered to halt the activity of any defendant,
including one condemning land for eminent domain purposes, by
offering evidence that adverse effect on the environment is
likely. The law states:
Any person . . . may maintain an action . . . for
declaratory and equitable relief against the state,
any political subdivision thereof . . . any person,
partnership, corporation, association, organization
or other legal entity for the protection of the air,
water, and other natural resources and the public
trust therein from pollution, impairment, or destruc-
tion.
A defendant in such an action may contest the issue of environ-
mental damage or may demonstrate that there is no feasible
alternative and that the activity is "consistent with the pro-
motion of the public health, safety, and welfare in the light of
the state's paramount concern for the protection of its natural
resources. . . ."^^ In an action of this type, the burden of
proof rests with the plaintiff. Although this type of declara-
tory action is of significance, the previously discussed re-
allocation of the burden of proof of environmental damage to a
condemnor would amount to a presumption of environmental damage
that would need to be rebutted prior to condemnation, whether
or not someone took action. Thus, a condemnor would be com-
pelled to view all condemnation activities in terms of their
environmental impact.
Another theory of the protection of land against abuse has par-
ticular relevance in a consideration of eminent domain. In
general, the rights associated with eminent domain are designed
to insure that any property taken will be taken for a public
purpose only with just compensation being made prior to the
condemnor exercising jurisdiction over the property. That is,
the rights surrounding eminent domain exist to guarantee
private property rights against undue destruction or damage.
This is in support of the notion that "the exercise of eminent
domain is not without restraint. "^1 On the other hand, the
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ENVIRONMENTAL PROTECTION
power of eminent domain is designed to provide access, in the
name of the elusive "public good," to land for strictly defined
public uses. The power of eminent domain views the condemnation
proceedings from the standpoint that land is required for some
public purpose. What follows is a brief discussion of the
public trust doctrine, how it views the condemnation proceedings
in the main from the perspective of the power of eminent domain
and how it provides interesting remedies by creating a public
right. 72
Article XVII, Section 1 of the Montana Constitution mentions
the concept of a public trust:
All lands of the state that have been or that may
hereafter be granted to the state by congress,
and all lands acquired by gift or devise, from
any person or corporation, shall be public lands
of the state and shall be held in trust for the
people [emphasis added] ....
Article XV, Section 9 of the Montana Constitution states another
form of the public trust doctrine.
The right of eminent domain shall never be abridged,
nor so construed as to prevent the legislative
assembly from taking the property and franchises of
incorporated companies, and subjecting them to public
use the same as the property of individuals, and the
police powers of the state shall never be abridged,
or so construed, as to permit corporations to conduct
their business in such manner as to infringe the
equal rights of individuals, or the general well-
being of the state.
This provision, adopted in 1889, has not been the subject of
amendment or a proposed change of wording. As interpreted by
the Montana courts, it means that the "property rights of
corporations are not more sacred or exclusive than those of
private individuals . "^3 More important is the statement that
"the public welfare is . . . the particular base upon which
must be laid the correct application" of eminent domain.'^
That is, one of the principal tools used by the state to insure
the public use of land rests squarely on some conception of
the public welfare. A more recent case makes the same point:
It is so well-settled as to hardly need citations
of authority that under the guise of police power
the state and the municipal subdivisions thereof
have not only the power, but the duty to do all
things necessary to fully protect the public in
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ENVIRONMENTAL PROTECTION
matters of the preservation, among other things, of
the health and well-being of the community [em-
phasis added]. ^5
In this case, the Montana Supreme Court went on to cite American
Jurisprudence , saying:
The breadth and extent of the police power, covering
the exigencies confronting the community, its adapta-
bility, durability, inalienability, and the number of
public purposes included in its scope make it a prin-
cipal pillar of government. It has been stated that
the police power in effect sums up the whole power of
government, and that all other powers are only inci-
dental and ancillary to the execution of the police
power; it is that full final power involved in the
administration of law as the means to the attainment
of practical justice. Moreover, it has been said
that the very existence of government depends on it,
as well as the security of the social order, the
life and health of the citizen, the enjoyment of pri-
vate and social life, and the beneficial use of
property. . . . [The Court cited the maxim, "salus
populi est supreme lex" (the well-being or wholeness
of the condition of the people is the supreme law) ] .
It has been said that this maxim is the foundation
principle of all civil government and that for ages
it has been a ruling principle of jurisprudence.'^
Other state constitutions employ the public trust concept in
various ways. The Constitution of Virginia [Art. XIII, Sec.
175] contains a very limited application to the natural oyster
beds of the state. Although Washington does not specifically
mention the public trust, it does contain a provision [Art. XV,
Sec. 1] establishing harbor lines and providing that water be-
yond such lines shall be reserved forever for landing wharves,
streets, and other conveniences of navigation. Both Alaska
and Hawaii also have provisions which imply the public trust
concept. Article VII, Section 1 of the Alaska Constitution
provides: "It is the policy of the state to encourage the
settlement of its land and the development of its resources
by making them available for maximum use consistent with the
public interest." Section 3 of the same article provides:
"Wherever occurring in their natural state, fish, wildlife, and
water are reserved to the people for common use." The Hawaii
Constitution provides in Article X, Section 1: "The legislature
shall promote conservation, development and utilization of
agricultural resources, and fish, mineral, forests, water,
land, game and other natural resources."
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ENVIRONMENTAL PROTECTION
Another example of a constitutional statement of the trust doc-
trine is found in Article IX, Section 3 of the Wisconsin Con-
stitution:
The people of the state, in their right of sovereignty,
are declared to possess the ultimate property, in and
to all lands within the jurisdiction of the state; and
all lands the title to which shall fall from a defect
of heirs shall revert or escheat to the people.
The operation of the Wisconsin doctrine as reflected in its
wording is quite different from that of the Montana provisions,
and is suggestive of the potential of the trust doctrine as a
theory of environmental protection. In an early Wisconsin
case involving the trust doctrine, the state Supreme Court
ruled that the final determination of whether an act is a
"public purpose" is not a legislative matter, but must be made
by the judiciary.''
That ruling suggests the above-mentioned wording of the
eminent domain provisions in Montana's 1884 Constitution, where-
by the judiciary was empowered to override a legislative deci-
sion that a use was public. That is, the judiciary could say
that a use was not public regardless of any legislative declara-
tion on the matter.
Other Wisconsin decisions dealing with the public trust con-
cept announced that the state has an obligation not only to
preserve but to promote the public trust. '^ More recently,
the Massachusetts Supreme Court has handed down public trust
decisions. In a 19 66 case, a proposed private use of public
lands was thrown out by the court for want of explicit legis-
lative authorization. 7^ Another case reaffirmed that an incon-
sistent use of lands in the public trust was barred unless
the public will for the new use and the willingness to forgo
the existing use was expressed by the legislature . 80
Perhaps the most celebrated public trust case in the country
was decided in 1890 by the U.S. Supreme Court. The case,
Illinois Railroad Co. v. Illinois, resulted when the Illinois
legislature tried to recover land it had granted to the Illinois
railway. The grant included all the land underlying Lake
Michigan, all land within a mile of the shoreline and the whole
commercial waterfront of Chicago. The Supreme Court, in up-
holding the power of the legislature to invalidate the grant,
said that the legislature had no power to give up any trust
lands in the first place. This case stands as an important
precedent because it articulated the ideas which have come to
be regarded as central to the public trust doctrine. According
to one commentator, the Court in essence ruled:
272-
ENVIRONMENTAL PROTECTION
When a state holds a resource which is available for
the free use of the general public, a court will look
with considerable skepticism upon any governmental
conduct which is calculated either to reallocate that
resource to more restricted uses or to subject public
uses to the self-interest of private parties. ^^
Although this notion has not met with uniform approval, a brief
exploration of the potential of such a doctrine--explicitly
empowering the state to vigorously enforce the overall interests
of the public in land management over all narrower interest
claims — is in order.
"In essence, the Public Trust Doctrine makes the government the
public guardian of those valuable natural resources which are
not capable of self-regeneration and for which substitutes
cannot be made by man."^^ Thus, the doctrine could be the tool
for the increased and innovative environmental use of the
power of eminent domain. In addition, as another commentator
has written, the doctrine could embrace three aspects: a
legal right for the general public; enforceability against
government, and flexibility to permit application to contempor-
ary environmental quality concerns. In this case, the doctrine
could expand the citizen's rights with respect to the use of
the land.^^
The basis of the doctrine was stated by Secretary Holmes of
President Theodore Roosevelt's National Conservation Commis-
sion:
The resources which have required ages for their
accumulation to the intrinsic value and quality of
which human agency has not contributed, for which
there are no st±)stitutes , must serve the welfare
of the nation. In the highest sense, therefore,
they should be regarded as property held in trust
for the use of the race rather than for a single
generation and for the use of the nation, rather
than for the benefit of a few individuals who may
hold them by right of discovery or by purchase. ^^
The adoption of an extended public trust doctrine could firm
up the government's duty of care and responsibility to the
public in the use of all land in much the same way as a trustee
is obligated to his beneficiary. The doctrine has a long history
which may shed some light on its possible uses.
Evidence can be cited that as far back as Plato there was a re-
cognition that man is the guardian of his environment. In
general, however, such evidence is weak; and it is safer to say
that the early Western philosophers had no special insights into
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ENVIRONMENTAL PROVISIONS
the relationship between man and his environment. By the time
John Locke's theories were written in the seventeenth century, the
accent was placed on the individual property right and the right
to unlimited accumulation. Locke noted then that the "world
seemed full" and that therefore the accumulations of one would
not unduly affect another. 85 it is currently acknowledged
that this "full world" no longer exists.
The application of the public trust doctrine in the Anglo-
American law yielded the same result: from a concept of the
inalienability of certain public lands, it was transformed
into a device for the protection of private property. The
doctrine germinated in a pxiblic right to the lands under
navigable waters to which title was early held by the king.
Gradually, however, as the courts were confronted with the
claims of riparian owners, these rights were upheld to the
detriment of any public right that could be invoked. 86
In 1892, the U.S. Supreme Court distinguished between two
types of land held by the government: land for sale and
land held as trust land. The trust land was held to be
inalienable — it could not be sold by the state. That is,
the state could not divest itself of its authority to
govern such land. 87 Various courts now have established
standards which help determine circumstances under which a
sale of public trust land is peirmissible. Perhaps the most
important of these standards is that such a transfer must
be necessary to promote the interests of the beneficiaries
of the trust. 88
An example of the effect of the public trust doctrine can be
seen in the enunciation of a constitutionally protected right
to clean air, water and wilderness preservation, among other
things. An essential adjunct to such a declaration would be
the capacity and obligation to invoke the authority of the state
in its enforcement. That is, the state, having dominion over
the air, water and other resources^ also would need a clear set
of obligations in defense of that trust and in the face of
its possible exploitation.
The operation of the public trust doctrine would affect not
only governmental property but also private property being
used in a manner inconsistent with the public interest or
where such use was contemplated. In the case where the
government attempts to use its property in a manner incon-
sistent with the public interest, the beneficiaries of the
trust, having first exhausted any existing administrative
remedies, could seek a writ of mandamus or some other form
of relief. Such relief would be granted with a view to pro-
moting the public interest in the land and would require
regulation of such land and limitations on its use consistent
-274-
ENVIRONMENTAL PROVISIONS
with that public interest. More important — and more
dif f icult--is the possible application of the public trust
doctrine to private property. As noted, the prior public use
doctrine could be extended to protect land which could be
proven to be environmentally significant. That is, private
land use in the public interest could preclude future con-
demnation for such projects as highways construction, the
erection of utility poles, etc. The problem occurs when
private land is used in a manner unduly abusive of the
environment.
In this instance, the conflict between private property
interests and the public trusts could be harsh. Under the
public trust principle, all property is ultimately within
the trust and any transfer of it includes the obligation
to use the land consistent with the standards of the trust.
In other words, the trust principle stresses that there are
conditions to the possession of land--basically that the
land not be used for a purpose inconsistent with the public
interest in a quality environment. An example of legisla-
tion already enacted shows how this principle can be
applied. Air and water pollution legislation at the state
and federal levels basically mandates that the air and water
be used only in certain ways. When a person or corporation
violates whatever standards are enacted, he is compelled to
stop his abuse. The public trust principle could apply this
reasoning to the land and, more broadly, to the environment
as a whole.
Svunming up the problem when the state is confronted with a
private use of land in a manner detrimental to the environ-
ment, William Garton writes:
The courts must be ever vigilant to protect per-
sonal liberties and property rights from arbitrary
legislation. But . . , lt]o say that those whose
activities so imperil society are entitled to com-
pensation when denied the "right" to continue those
activities is plainly to deny the historical, and
essential, role of the police power. ^^
An article in a recent Montana Law Review recommended a con-
stitutional public trust provision applicable to air, water
and public lands:
(1) Each person has a right to a healthful
environment and each person has a responsibility
to contribute to the preservation and enhance-
ment of the environment.
-275-
ENVIRONMENTAL PROTECTION
(2) The use of the air, water and public
lands shall be a privilege granted only in the
public interest and with regulations imposed by
authorized agencies.
(3) It is the policy of the state of Montana
to hold in trust for the people to conserve the
air, water, public lands and other natural re-
sources by purchase, by withdrawal from use or
by regulation; to provide, or to assist the
counties and municipalities in providing facil-
ities for recreation; to establish and maintain
parks, forests, wilderness areas and prairies;
to improve streams and other waters; to insure
the purity of the air and water; to control the
erosion of soils; and to do all else necessary
for the protection of the natural heritage.
(4) The attorney general, any political
subdivision of the state, any agency of the
state or of a political subdivision thereof, any
person, partnership, corporation, association,
organization or other legal entity may maintain
an action in the district court having juris-
diction where the alleged violation occurred or
is likely to occur for declaratory and equitable
relief against the state, any political sub-
division thereof, any person, partnership, cor-
poration, association, organization or other
legal entity for the protection of the air,
water and other natural resources and the public
trust therein from pollution, impaiinnent or
destruction.
It should be noted that this proposal does not specifically
incorporate wildlife, nor does it deal with the possible
application of the doctrine to the use of private property. 90
A recent Montana Fish and Game Department letter advises:
"Consideration should be given to a provision designating the
fish and wildlife resources of the state as being a public trust
to be managed in the best interests of the people. "91 This is
in recognition of the fact that wildlife protection is a
state function. The federal government, in general, pro-
tects only migratory and endangered species. Perhaps some
version of the public trust doctrine whereby government was
empowered to act on behalf of environmental considerations
for all lands within its jurisdiction would offer an effec-
tive tool for responsible action in the preservation of the
environment. It might be wise, as one commentator has
written, to make government the "guardian of those valuable
-276-
ENVIRONMENTAL PROTECTION
natural resources which are not capable of self- regeneration
and for which substitutes cannot be made by man" and, at
the same time, to name the public as the sole beneficiary of
such guardianship. ^2
The basic principle — sic utere tuo ut alienum non laedas — that
one should use his property only in ways which do not injure
another has long been recognized. In addition, it should be
remembered that the Latin word for property (proprietas) never
meant only what one could acquire. The term also contained
the notion that one properly possessed property, that there
was something appropriate about one's acquisition and use of
property taken as it is from a common, finite store. It was
not until the seventeenth century theories of John Locke that
property lost most of its connotations of the ultimate require-
ment of propriety in all acquisition and possession.
The question appears to be whether the government should have
the explicit duty of enforcing the public good of having all
land used in a manner conducive to environment quality. Both
the power and the right of eminent domain have the potential
to assure that environmental considerations will be at the
forefront of any proposal for the development of land or use
of other natural resources. Indeed^ one might even say that
the theory of eminent domain — for so long allegedly used to
the detriment of the environment — could become, if expanded
and coupled with some combination of the above theories, the
most pervasive source of legal protection of the environment
while at the same time assuring that in no case should an
owner be deprived of property without just compensation.
CONCLUSION
One observer of the ecological crisis has written:
Whenever a new crisis or challenge emerges in American
society, both leaders and citizens are quick to create
a popular wisdom which simply, easily, and safely ex-
plains its origins and nature. Simple explanations
are more readily understood, and they call only for
easy responses. Easy responses entail minimal commit-
ment in terms of time, money, and changes necessary to
respond to the challenge. Safe answers and solutions
ensure that prevailing special interests and social
structures, which in reality may have contributed to
the crisis, will not be threatened or altered. Such a
process of rationalization is now developing with re-
gard to the ecological crisis, and it may make it
-277-
ENVIRONMENTAL PROTECTION
increasingly impossible for us to respond adequately
to the root dimensions of the problem. ^ 3
A highly regarded political theorist makes a similar point when
he states: "it is no longer a certainty that we will be able
to solve our social ills by working with the same operational
values and within the same systematic structures that have
helped to create them."^^ Even if one does not agree with those
statements, the points raised are ones which should be con-
sidered; there are no quick or easy answers to the depth of
the environmental degradation to which all contribute,
admittedly in varying measures. Indeed, as another author
warns: "A century after the word 'ecology' was coined its
subject matter has suddenly become fashionable. Sudden
popularity is always dangerous. Ecology now runs the risk
of being suffocated by its friends [emphasis added]. . . ."95
Such criticism cannot be taken lightly.
That there is continuing degradation of the environment is
scarcely debated. The solutions proposed for the problem are
highly debatable, intensely political issues affecting all
manner of private interests — consumer as well as corporate--in
an effort to recast the mold of that elusive but crucial
"public interest." And, in a society whose offspring allegedly
have fifty times the negative impact on the environment as a
child born in India, the solutions, even stopgaps, cannot be
easy. ^^
-278-
CHAPTER VIII
NOTES
1. Charles Maechling, "The Emergent Right to a Decent Environ-
ment," Hxjman Rights, American Bar Association 1 (1) August,
1970): 59. Cited hereafter as Maechling, "Decent Environ-
ment." For the same point, see T.Y.P., Jr., "Toward a
Constitutionally Protected Environment," Virginia Law Re-
view 56 (1970): 458, and Earl Finbar Murphy, "The Necessity
to Change Man's Traditional View of Nature," Nebraska Law
Review 48 (1969) : 299.
2. See, for example, Dorothy Lee, Freedom and Culture (New
York: Prentice-Hall, Inc., 1959), and John G. Niehardt,
Black Elk Speaks (Lincoln: University of Nebraska Press,
1961) . See also speech of Chief Seattle, January 9, 1855.
3. Albert L. Sturm, "Trends in State Constitution-Making 1966-
1970," Prepared for publication in William and Mary Law
Review 13 (1971) : 21, in prepared copy.
4. Eva H. Hanks and John L. Hanks, "The Right to a Habitable
Environment," The Rights of Americans; What They Are--
What They Should Be, ed. Norman Dorsen (New York: Random
House , 19 71) , pp. 146-147. Cited hereafter as Hanks,
"Habitable Environment."
5. Ibid. , p. 149.
6. E. F. Roberts, "The Right to A Decent Environment: Progress
Along A Constitutional Avenue," Law and the Environment ed.
Malcolm Baldwin (New York: Walker and Co., 1970), p. 147.
7. Hanks, "Habitable Environment," p. 153.
8. Griswold v. Connecticut, 381 U.S. 479, 493 (Goldberg, J.,)
(concurring opinion) .
9. Earl Finbar Murphy, "Has Nature Any Right to Life?" Hastings
Law Journal 22 (1971) : 483. Cited hereafter as Murphy ,
"Nature."
10. California, Assembly Select Committee on Environmental
Quality, "Environmental Bill of Rights: (March, 1970), pp. 7,
20, 47.
11. Norman J. Landuau and Paul D. Rheingold, The Environmental
Law Handbook (New York: Ballantine, 1971), pp. 38-39. Cited
hereafter as Landau, Environmental Law.
-279-
12. Hanks, "Habitable Environment," p. 158.
13. Joseph L. Sax, Defending the Environment: A Strategy for
Citizen Action (New York: Alfred A. Knopf, 1971) , pp. 234-
235.
14. Ibid, pp. 263-237.
15. See, for example. New York Const. Art. XIV; Illinois
Const. Art. XI, Sec. 1.
16. Charles Reich, Bureaucracy and the Forests (Santa Barbara:
Fund for the Republic, 1962) , pp. 1-2.
17. David F. Click and Peter H. Sullivan, Environmental Pro-
tection Act (New Haven: Yale Legislative Services, 1971) ,
p. 2. Cited hereafter as Click, EPA.
18. Bill Leaphart, "'Public Trust' as a Constitutional Provision
in Montana," Montana Law Review 33 (1972): 182. Cited here-
after as Leaphart, "Public Trust."
19. Click, EPA, note 4 at p. 3.
20. U.S., Council on Environmental Quality, Environmental
Quality (Washington, D.C. : U.S. Government Printing
Office, 1971), p. 170. Cited hereafter as CEQ, Environ-
mental Quality.
21. 42 U.S.C. Sec. 1857L-2.
22. CEQ, Environmental Quality, p. 172.
23. Samuel Warren and Louis Brandeis , "The Right to Be Let
Alone," Harvard Law Review 4 (1890) : 194.
24. Landau, Environmental Law, p. 27.
25. See, for example. The City of El Paso v. American Smelting
and Refining Co., et al. , cited from Ibid., p~. 267.
26. On trespass as a legal cause of action, see Reynolds Metal
Co. V. Martin, 337 F.2d 780 (9th Cir. 1964) and Renken v.
Harvey Aluminum, Inc., 226F. Supp. 169 (D. Ore. 1963) .
27. Landau, Environmental Law, p. 30.
28. Ibid. , pp. 30-31.
29. Louis L. Jaffe, "Standing to Sue in Conservation Suits,"
Law and the Environment ed. Malcolm Baldwin (New York,
Walker and Co., 1970) p. 122.
-280-
30. Bernard S. Cohen, "The Constitution, the Public Trust
Doctrine, and the Environment," Utah Law Review (June,
1970): 388. Cited hereafter as Cohen, "Public Trust."
31. See, eg., N. William Hines , "Nor Any Drop to Drink:
Public Regulation of Water Quality. Part I, State
Pollution Control Programs," Iowa Law Review 52 (1966):
196-201. This is the general point of Frank P. Grad and
Laurie R. Rockett, "Environmental Litigation — Where the
Action Is?" Natural Resources Journal 10 (October, 1970) :
742-762.
32. Hanks, "Habitable Environment," p. 147.
33. Richard McCann, "Standing: Who Speaks for the Environment?"
Montana Law Review 32 (1971) : 130. Cited hereafter as
McCann, "Standing. "
34. Ibid. For the trend in the cases of challenges to govern-
ment action, see note 5, p. 130 in Ibid.
35. Click, EPA, p. 8.
36. McCann, "Standing" note 11 at p. 131.
37. Flast V. Cohen, 372 U.S. 83 (1968).
38. See Associated Industries of New York v. Ickes, 134 F.2d
694, 704 vacated as moot 320 U.S. 707 (1943) and Office
of Communication of the Church of Christ v. F.C.C. , 359
F.2d 994, 1002 (D.C. Cir. 1966).
39. See ADP v. Camp, 397 U.S. 150, 153 (1970).
40. McCann, "Standing," p. 144.
41. Citizens Committee for the Hudson Valley and Sierra Club
v7~Volpe, et al., 302 F. Supp. 1083 (S.D.N.Y. 1969) aff'd
425 F.2d 97 (2d. Cir. 1970).
42. Click, EPA, p. 20.
43. McCann, "Standing," p. 143.
44. Robert Lohrmann, "The Environmental Lawsuit," Wayne Law
Review 16 (September, 1970): 1129-30. Cited hereafter
as Lohrmann, "Lawsuit."
45. Res Judicata is the doctrine that the matter in question
has already been decided in a previous case. Literally
translated, it means "the thing having been decided."
Collateral estoppel, briefly stated, precludes raising a
question or issue at a late stage in a proceeding unless
such question was raised early in the proceedings.
-281-
46. Click, EPA, p. 21.
47. Joseph Sax, "Explanatory Memorandum" accompanying the
Natural Resource Conservation and Environmental Protection
Act 7 , distributed by the West Michigan Environmental
Action Council, Grand Rapids, 1969. Cited from Lohrmann,
"Lawsuit," note 248 at p. 1129.
48. Click, EPA, p. 22.
49. Jeffrey J. Scott, "The Montana Environmental Protection
Act: Where Do We Go From Here?" Montana Business Quarterly
(Summer, 1971) : 38.
50. Montana, University of Montana, School of Law, Eminent
Domain, Research Report Prepared for the Montana State
Highway Commission (Missoula, 1967) , p. 32, citing Black' s
Law Dictionary (4th Revised ed. , 1968), p. 616.
51. Montana, Constitutional Convention of 1889, Proceedings
and Debates of the Constitutional Convention (Helena:
State Publishing Co., 1921), pp. 120-124.
52. Ibid. , p. 701.
53. Ibid. , p. 123.
54. Ibid. , p. 124.
55. Ibid. , pp. 253-254.
56. Ibid. , pp. 253-254.
57. See Boom Co. v. Patterson, 98 U.S. 403, 406 (1878).
58. Terry Calvani, "Eminent Domain and the Environment,"
Cornell Law Review 56 (1971) : note 8 at 652-653. Cited
hereafter as Calvani, "Eminent Domain."
59. Kohl V. U.S. , 91 U.S. 367, 372-373 (1875). For Hamilton's
fear, see Clinton Rossiter, ed. , The Federalist Papers (New
York: New American Library, 196lT~i ST!
60. Revised Codes of Montana, 1947, Sec. 93-9902 (9934) contains
the statutory extensions of public use.
61. Ibid.
62. Calvani, "Eminent Domain," p. 651.
63. Charles Reich, "The Law of the Planned Society," Yale Law
Journal 75 (July 1966) : 1227.
-282-
64. Murphy, "Nature," pp. 457, 471.
65. See Calvani, "Eminent Domain," note 17 at p. 655.
66. Ibid. , p. 656.
67. See, e.g.. Federal Aid-Highway Act, 23 U.S.C. Sec. 138
(Supp. V, 1970) ; Department of Transportation Act, 49
U.S.C. Sec. 1653(f) (Supp. V, 1970); also see, H. R.
19732, 91st Cong. 2d Sess. (1970). Section 101 (d) (2)
of the bill would forbid the Secretary of the Army appro-
ving any public works application unless , among other
things, "either no adverse environmental effect is likely
to result from such project, or there exists no feasible
and prudent alternative to such effect and all reasonable
steps have been taken to minimize such effect." H.R.
Res. No. 1083, 91st Cong., 2d Sess. 21 (1970) recommends
that the Secretary of the Interior require all right of
way applicants to prove affirmatively that the proposed
right of way is in the public interest and that, if there
is to be harm to the environment, there is no feasible
and prudent alternative. Cited in Calvani Ibid. , note
23 at p. 657.
68. Maechling, "Decent Environinent , " p. 71.
69. Michigan Statutes Annotated, Sec. 14.528 (201)-(207)
(Current Material 1970) .
70. Ibid.
71. Calvani, "Eminent Domain," p. 653.
72. The latest Montana Law Review contains an article on the
public trust doctrine which recommends its adoption at the
state constitutional level to protect air, water, public
lands and other natural resources. The article does not
deal with the application of the public trust to private
lands. See Leaphart, "Public Trust."
73. Butte, Anaconda and Pacific Railway Company v. The Montana
Union Railway Company, et al. , 16 Mont. 504, 521, 41 P. 232
(1895) .
74. Ibid. , at p. 537.
75. Ruona v. City of Billings, 136 Mont. 554, 557, 323 P. 2d 29
(1959) .
76. Ibid. , pp. 557-558, citing Am. Jur. , Sec. 245, pp. 966,
-283-
77. Priewe v. Wisconsin State Land and Improvement Company,
93 Wis. 534, 67 NW 918 (1896).
78. Milwaukee v. State, 193 Wis. 423, 214 N.W. 820, 830 (1927),
See also, Muench v. Public Service Commission, 261 Wis.
492, 53 N.W. 2d 514 (1952) and State of Wisconsin v.
Public Service Commission, 275 Wis. 112, 81 N.W. 2d 71
Tiwrr.
79. Gould V. Grey lock Reservation Commission, 350 Mass. 410,
215 N.E. 2d 114, 121 (1966).
80. Robbins v. Department of Public Works, 355 Mass. 328,
244 N.E. 2d. 577, 580 (1969).
81. Sax, "The Public Trust Doctrine in National Resource Law:
Effective Judicial Intervention," Michigan Law Review
68 (January 1970) : 490. Cited hereafter as Sax "Resource
Law" .
82. Cohen, "Public Trust," p. 388.
83. Sax, "Resource Law," p. 474.
84. U.S., National Conservation Commission, Report of the
National Conservation Commission, Senate Document No. 676,
60th Cong. 2nd Sess. 109 (1909).
85. Plato, Laws, Book 5, p. 736, and John Locke, Concerning
the True Original Extent and End of Civil Government in
35 Great Books of the Western World, 32 (1952). Both
cited from Cohen, "Public Trust," p. 389.
86. Cohen, "Public Trust," pp. 387-388.
87. Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892).
88. In re Crawford County Levee and Drainage District, 182 Wis.
404, 196 N.W. 874, cert, denied, 264 U.S. 598 (1924) .
89. William A. Garton, "Ecology and the Police Power,"
South Dakota Law Review 16 (Spring, 1971): 290.
90. Leaphart, "Public Trust," pp. 183-184.
91. Letter from Frank H. Dunkle, State Fish and Game Director,
to Montana Constitutional Convention Commission, December
2, 1971.
92. Cohen, "Public Trust," p. 388.
93. Ritchie P. Lowry , "Toward a Radical View of the Ecological
Crisis," Environmental Affairs 1 (June, 1971): 350.
-284-
94. Michael Parent! , "The Possibilities for Political Change,"
Politics and Society 1 (1970) : 88.
95. Garret Hardin, "Foreword," in Mark Terry, Teaching for
Survival (New York: Ballantine Books, 1971), p. x.
96. See, e.g. , Dr. Paul Ehrlich, The Population Bomb (New
York: Ballantine Books, 1969). This and a considerable
amount of contemporary literature speaks to this point.
-285-
-286-
CHAPTER IX
MISCELLANEOUS PROVISIONS
UNENUMERATED RIGHTS
One of the central features of the system of rights reflected
in the Bill of Rights and state constitutions is the notion
that it is impossible to compile a complete and definitive
list of the personal rights to which each citizen is entitled. ■■-
The Ninth Amendment to the United States Constitution and
Article III, Section 30 of the Montana Constitution both re-
flect this idea in what is at first glance a baffling provision:
"The enumeration in the Constitution, of certain rights, shall
not be construed to deny, impair or disparage others retained
by the people." It is baffling because there seems to be no
readily acceptable answer to the question, "what other rights
are there?" However, in no constitution, state or federal, is
there any indication that the impressive list of rights con-
tained therein is an exhaustive one. The federal unenumerated
rights provision (the Ninth Amendment) was passed, along with
the eight amendments which constitute the main body of the Bill
of Rights, by the First United States Congress with no debate
and almost no change in language from the Madison proposals.
Many had expressed fear that an effort to specifically enumer-
ate a list of rights could never successfully include all rights,
and that rights not mentioned might thereby be denied. Indeed,
Alexander Hamilton, who opposed an explicit Bill of Rights at
the federal level, had reason other than his belief that the
federal government had no power to intrude upon fundamental
personal rights. He also stated:
I go further, and affirm that bills of rights, in the
sense and in the extent in which they are contended for,
are not only unnecessary in the proposed constitution,
but would even be dangerous. They would contain various
exceptions to powers which are not granted; and on this
very account, would afford a colourable pretext to claim
more than were granted. For why declare that things
shall not be done which there is no power to do? Why for
instance, should it be said, that the liberty of the
press shall not be restrained, when no power is given by
which restrictions may be imposed? I will not contend
that such a provision would confer a regulating power;
but it is evident that it would furnish, to men disposed
to usurp, a plausible pretence for claiming that power. ^
■287-
MISCELLANEOUS PROVISIONS
The unenumerated rights clause was adopted specifically to
allay such suspicions.
In 1873, the United States Supreme Court noted the inexhaus-
tive character of the guarantees explicit in the Constitution
and said that the application of the broad guarantees must
be a "gradual process of judicial inclusion and exclusion. "^
However, the heart of the matter lies somewhat deeper. The
extension and interpretation of the rights of men in political
bodies is not only the function of the judicial branch. What-
ever structure the legislature takes, from town meeting to
representative body, it and the executive branch both play a
role in the climate of liberty. More important, the public
(ordinarily a small and often vocal minority of the public)
has traditionally been the distinctive element in the develop-
ment of attitudes shaping these distilled and written guaran-
tees .
In the judicial realm, the unenumerated rights clause operates
against the notion that the expression of one right effects
the exclusion of others (inclusio unius est exclusio alterius)
and thereby permits the courts to seek to give expression to
new rights that emerge in the process of litigation. One
example of this is the so-called Penumbra Doctrine of Griswold
V. Connecticut. ^
That opinion, written by Justice Douglas, stated that "specific
guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and
substance. "5 Justice Goldberg, joined by Chief Justice Warren
and Associate Justice Brennan, approached this point more
closely when he stated:
I do agree that the concept of liberty protects those
personal rights that are fundamental, and is not confined
to the specific Bill of Rights. My conclusion that the
concept of liberty is not so restricted and that it
embraces the right of marital privacy though that right
is not mentioned explicitly in the Constitution is
supported both by numerous decisions of this Court. . .
and by the language and history of the Ninth Amend-
ment. ... I add these remarks to emphasize the rele-
vance of that amendment to the Court's holding.^
Thus the Ninth Amendment is clearly construed to permit the
judiciary to announce aspects of the concept of liberty that
are not explicit in the Bill of Rights.
-288-
MISCELLANEOUS PROVISIONS
Although Justice Goldberg noted that the United States Supreme
Court had ruled on the unenumerated rights provision in only
a handful of cases, there are increasing signs that the Ninth
Amendment could develop into the most important source of
judicial activity of the contemporary period.
Conceivably, should state courts revitalize their approach
to the area of personal liberties, the unenumerated rights
provision could add to the previously discussed task of the
states as experimenters in the field of new rights.'
The doctrine of unenumerated rights also has broader political
implications: Especially when coupled with the Tenth Amend-
ment reservation of powers "to the states . . . or to the
people" it is an acknowledgment that the legal process and the
rule of law do not operate as an all-inclusive blanket to de-
fine the limits of the political realm. And it is this area
of political activity beyond established institution that is
one of the requisites of the open society.
SOVEREIGN IMMUNITY
In recent years there has been considerable constitutional and
statutory concern in the area of sovereign immunity. In his
study of recent trends in state constitution-making, Albert
Sturm has noted that "among the new or emerging substantive
provisions adopted in the last five years" is "the authority
to sue the government for injuries and damages (7 states). . .
For example, the Committee on the Bill of Rights in the recent
Illinois Constitutional Convention recommended that wording
doing away with sovereign immunity be attached to the ex post
facto law provision. The 1870 Illinois Constitution [Art. IV,
Sec. 26] had provided that "the State of Illinois shall never
be made defendant in any court of law or equity," thus grant-
ing sovereign immunity to the state.
The convention committee recommended a provision stating: "The
state shall have no special immunity from suit."^ In support
of its proposal, the committee stated:
[Bjy abolishing sovereign immunity in the State of
Illinois, this sentence intends to assure that the
State, all instrumentalities of the State, and all
local government bodies will be subject to suit in the
same manner as individual persons. -^^
-289-
MISCELLANEOUS PROVISIONS
The new Illinois Constitution suggests that the committee did
not score a complete victory. The document states [Art. XIII,
Sec. 4]: ''Except as the General Assembly may provide by law,
sovereign immunity in this State is abolished."
The Montana Constitution neither specifically allows nor pro-
hibits sovereign immunity. But Montana court cases abide by
the principle that "a state, by reason of its sovereign
immunity, is immune from suit and it cannot be sued without
its consent in its own courts, the courts of a sister state,
or elsewhere." This principle is held to exist separate
from express constitutional sanction and rests on "public
policy." It may be waived by a proper authority of the state
in the absence of a conflicting constitutional provision. 12
In addition to the above, the state's consent to be sued is
not a contract and can be revoked at any time at the discretion
of the state. Should the state, for example, decide to for-
bid appeal of a decision favorable to it, it can revoke its
consent and the appellate court must dismiss the appeal, leav-
ing the lower court judgment stand. ^^
That is not to say that the doctrine of sovereign immunity is
a hard and fast rule. For example, courts have attempted a
distinction between "governmental" and "proprietary" functions.
Governmental functions have been defined as those "vested for
the administration of the general laws of the state;" alter-
natively, a function has been defined as governmental if it
"benefits society as a whole and can not be done by other seg-
ments of society. 1^
On the other hand, proprietary functions are held to be those
"carried out in a corporate or private capacity." Once this
not entirely workable distinction is made, courts generally
hold that the state is immune from suit when pursuing a "govern-
mental" function. ■'-^
Other exceptions to the doctrine include personal suits for
illegal or unauthorized acts and suits to compel a public
official to legally perform his duty. But because both are
not as clear as they seem, the burden of proof resting on the
person bringing the suit is difficult to surmount.
Under current practice, then, sovereign immunity covers most
suits in which "judgment for plaintiff will operate to con-
trol the action of the state or subject it to liability ." 16
It has been noted that "nationally, the doctrine is waning
rapidly." It has existed as a viable, if irrational, expres-
sion of the phrase, "a king who could do no wrong."!'
Z'U)-
MISCELLANEOUS PROVISIONS
Another commentator backs up this statement, writing that the
continued adherence to the doctrine among the states is "due
to its acceptance (albeit without rational justification) by
the original states . . . ."18
The doctrine of sovereign immunity had its origins in the
Roman law shortly after the Caesarian period. It was understood
then that fault was based on an act of will. Since the state
was viewed as not having a "will," there could be no fault and
only the person committing the act could be sued.l^ in western
political thought, the doctrine was an outgrowth of the notion
that the "king can do no wrong." Since that time, the divine
right of kings has been thoroughly debunked; however, the
doctrine that the sovereign cannot be sued has a traceable his-
tory through the common law to its current use in the American
system of government . ^^
The doctrine of sovereign immunity was first announced in
American law in an 1812 case which relied on a 1788 English
precedent. 21 Chief Justice Marshall announced the principle at
the Supreme Court level in a dictiim in 1821. He said: " [T]he
general proposition that a sovereign state is not sueable,
except by its own consent, . . . will not be controverted. " ^2
Since that time the doctrine has been reaffirmed by federal
courts and by courts in every state. The Montana Supreme Court
reaffirmed the doctrine in a unanimous opinion November 4, 19 71.
In upholding the doctrine, the court noted that the 1959 Legis-
lature had provided a tort remedy against the state in certain
circumstances. The court referred to Sections 83-701 to
83-707 of the Revised Codes of Montana, 1947, limiting the
liability of the state to the amount of liability insurance
state agencies carry. Section 83-701 provides:
[T]he district courts of the state of Montana shall
have exclusive jurisdiction to hear, determine, and
render judgment to the extent of the insurance coverage
carried by the state of Montana on any claim against
the state for money only. . . on account of damage to
or loss of property, or on account of personal injuries
or death caused by the negligence or wrongful act or
omission of any employee of the state of Montana, while
acting within the scope of his office or employment,
under circumstances where the state of Montana, if a
private person, would be liable to the claimant for such
damage, loss, injury or death, in accordance with the
law of the State of Montana [emphasis added] .
-291-
MISCELLANEOUS PROVISIONS
That statute also hints at the distinction between govern-
mental and proprietary functions. Section 83-706 provides
that the "state of Montana shall be immune under this act from
any claim or demand, including judgments, in excess of such
collectible insurance."
Appellants in this case sought to have the court overrule the
doctrine of sovereign immunity as outmoded and bad public
policy. Contending that the court had promulgated the doc-
trine and therefore could abolish it, appellants cited cases
where state courts abolished sovereign immunity. 24 This
occurred in Arizona, California and Idaho. 25
The Montana Supreme Court, in refusing to overturn the doctrine,
disagreed with the contention that the legislature had not
acted in this area and that therefore the court could overrule
it. Pointing to the 1959 law, the court said: "The legisla-
ture has spoken and we are bound by its enactments." The
court, then, did not feel obliged to discuss the justifications
for the doctrine of sovereign immunity.
As noted previously, it appears that current widespread accept-
ance accorded the doctrine by American states is based on the
fact that the original states gave it their approval; new
states' courts relied on the general acceptance elsewhere to
justify their own acceptance of the rule.
A number of justifications have been offered in defense of the
doctrine. For example. Justice Holmes said:
A sovereign is exempt from suit, not because of any
formal conception or obsolete theory, but on the
logical and practical ground that there can be no
legal right as against the authority that makes the
law on which the right depends. 26
Holmes' point has not gone unnoticed; it has been criticized
as begging the question and being outmoded and conceptually
dogmatic. 27
Another argument cited in favor of the doctrine is that is
prevents the state from being delayed in the expeditious per-
formance of its functions and from having its control over
government property and funds reduced. 2° But one who argues
with this notion dismisses it by pointing to the magnitude
of legal and monetary resources available to the state. 29
Other arguments hold that a government tort is one committed
by the whole people and its recognition is therefore absurd.
-292-
MISCELLANEOUS PROVISIONS
that governmental employees who commit allegedly wrongful acts
are outside the scope of their authority and therefore are not
covered by any sovereign immunity cloak, and, finally, that
government ought^not be subjected to the embarrassment of a
liability suit,
30
These contentions generally are dismissed as invalid arguments
upon which no court would base a decision.^-'- William Tanner
also points out the fallacy in the argument that in suing the
government for tort liability the citizen is actually suing
himself. He states:
[T]he people are not the government; rather they are
represented by the government. ... To bar a tort suit
because of citizen interest and participation in govern-
ment is analogous to barring a stockholder's tort
suit against a large corporation. Furthermore, even if
one views the government as interchangeable with the
people , the balancing process demands that the theory
be subordinated when tort claims arise. -^^
Perhaps the most important reason for the retention of the doc-
trine of sovereign immunity is financial, in spite of the fact
that many commentators have pointed out the disparity between
the resources available to the government and those available
to the individual. One commentator, discussing the colonial
acceptance of the doctrine, has stated that "the financial
instability of the infant American states rather than . , .
the stability of the doctrine's theoretical foundations" is
the chief reason for its retention (emphasis added) . 33
Much writing in recent years has called for abolition of the
doctrine of sovereign immunity. Various commentators, noting
that the principle is rooted more in precedent than in logic
or experience, argue that the fear of huge tort runs on the
state treasury are exaggerated and that "the ready availability
of liability insurance provides adequate protection at moder-
ate cost which may be budgeted in advance. "3'^
Other frequently offered arguments for abolition are that the
government should administer justice against itself and in
favor of its citizens as readily as it does between private
litigants and that, as the government is required to pay for
private property taken for various uses, so too should it pay
when its policies and activities cause injuries. 35
William Tanner concludes that the doctrine "has in its present
form outlived its usefulness" and that it contributes to citizen
-293-
MISCELLANEOUS PROVISIONS
impotence in the face of governmental action; but, he also
admits the difficulty attending the abolition of sovereign
immunity: "What should take its place is more difficult to
determine. " -^^
He concludes (in a state that does not have an immediate consti-
tutional convention prospect) that the Kansas legislature should
act to modify the doctrine. Constitutional alternatives in-
clude the Illinois Constitutional Convention committee proposal
(stating simply that the state shall have no sovereign immunity
from suit) and the actual language finally adopted by the
Illinois Convention (that sovereign immunity is abolished,
except as the legislature may provide by law) . That open-end
system, whereby government is liable except where the legisla-
ture has acted, and the closed-end system, under which the
government is liable only when expressly provided by statute,
would leave the future extent of sovereign immunity up to the
legislature. Especially in the case of the closed-end system,
the provision would have no effect at all without legislative
action. The question, to paraphrase Tanner, is, "Would the
legislature respond in a manner favorable to the convention in-
tention? "37
IMPRISONMENT FOR DEBT
The Montana Declaration of Rights contains a provision generally
prohibiting imprisonment for debt. Article III, Section 12
reads :
No person shall be imprisoned for debt except in the
manner prescribed by law, upon refusal to deliver up
his estate for the benefit of his creditors, or in
cases of tort, where there is strong presumption of
fraud.
This provision permits more extensive debt imprisonment than
the typical wording in other states, which simply prohibits
imprisonment for debt. Although the Montana provision does
not prohibit imprisonment for a militia fine in times of peace
as do provisions of several other states, 38 it does require
that the debtor deliver up his estate before he can claim the
protection; it also permits debt imprisonment in tort cases
(civil or priate wrong) where there is strong presumption of
fraud. A few other states require the same.39
In general, however, constitutional prohibitions against im-
prisonment for debt do not extend to tort actions and cover
only actions arising out of contract, expressed or implied.'**^
■294-
MISCELLANEOUS PROVISIONS
During the first Hawaii Constitutional Convention, delegates
discussed a provision to exempt some reasonable amount of a
person's property from seizure or sale for the payment of
debts. '^l Such a provision would have the effect of limiting
a person's liability to a point where he still could maintain
his existence. Such provisions call to mind the protection ex-
tended to individuals who incorporate under the laws of the
state and whose liability in the case of corporate overexten-
sion and failure is limited to the amount they each personally
invested. Although the analogy can be carried too far, the
point is that the financial overextension of a corporation
is limited in its adverse effects; to adopt a provision simi-
lar to that considered by the Hawaii delegates would be to
limit the exigencies of individual overextension.^^
The Illinois Constitutional Convention Committee on the Bill
of Rights considered several alternatives to wording nearly
identical to Montana's. One proposal stipulated that no per-
son could be imprisoned for a debt arising out of a contract
unless there was fraud or a breach of trust. ^-^ Another pro-
posal would have abolished imprisonment for debt in civil cases;
it also would have forbidden imprisonment for failure to pay a
fine in a criminal case unless the fine was assessed in accord-
ance with the defendant's ability to pay, he had ample time to
make payment and had failed to do so. A third proposal simply
would have abolished all imprisonment for debt.^'*
These alternatives should provide groundwork for discussion
of the Montana Constitution provision on debtor imprisonment.
Given the Federal Constitution's silence on this matter, there
is ample room for state initiative.
TREASON
James Madison's notes of the Federal Convention of 1787 show
the concern of the Founding Fathers with incorporating strict
procedural safeguards into any treason clause placed in the
federal document. Of the delegates who took part in the debate
on the proposed treason provisions, all showed a surprising
degree of familiarity with one particular mid-fourteenth cen-
tury English statute on treason. The statute was one passed
under Edward III and became the basis of the typical American
wording of treason provisions. The intimate knowledge of this
statute possessed by the constitution-makers is perhaps not so
difficult to understand because virtually every member of the
Convention had himself committed treason a few years earlier.
-295-
MISCELLANEOUS PROVISIONS
Beyond that, the Americans who were writing the fundamental
law were well versed in English law history; they were partic-
ularly mindful of the royal efforts to contravene the rights
of Englishmen and induce obedience by force. Beginning with
the famous trial, conviction and assassination of Thomas
Becket, then Archbishop of Canterbury, the delegates at the
Federal Convention knew very well the history of two centuries
of the crime of "accroaching the royal power" and "compassing
and imagining the death of the king." Edward III had been
particularly inclined to name as treason "almost every offense
that was, or seemed to be , a breach of the faith and alle-
giance due to the king. . . ."46
Throughout the debate on the treason provision the Founding
Fathers made clear their desire for a restricted treason clause.
They required two witnesses to the same overt act or a confes-
sion in open court; they prohibited the legislature from declar-
ing one or a group to be treasonous. Most important, they
worded the provision so that treason was to encompass only what
was expressly provided for in the treason clause. It seems
that those who understood the sometimes uncomfortable exigen-
cies of political conflict and whose ultimate foundation was
the necessity of resistance renewed their commitment to a broad
latitude for that very kind of activity.
Article III , Section 9 of the Montana Constitution expresses
in this tradition-rooted language the crime of treason:
Treason against the state shall consist only in levying
war against it, or in adhering to its enemies, giving
them aid and comfort; no person shall be convicted of
treason except on the testimony of two witnesses to
the saiiae overt act, or on his confession in open court;
no person shall be attained of treason or felony by
the legislative assembly; no conviction shall work
corruption of blood or forfeiture of estate. . . .
This section was adopted without debate in the 1884 and 1889
constitutional conventions and has not been applied by the
courts .
Tacked on to the end of Section 9 is a sentence which has been
called "a curious example of the delegates' anxiety to include
certain material in the constitution without really caring
where it was included. "4' Consideration could be given to
better placement of the sentence, which states that "the
estates of persons who may destroy their own lives shall de-
scend or vest as in cases of natural death."
-296-
CHAPTER IX
NOTES
1. William H. Young, Ogg & Ray's Introduction to American
Government (New York: Meredith Publishing Co., 1962),
pp. 81-82.
2. Alexander Hamilton, The Federalist Papers, No. 84 (New
York: New American Library, 1961) pp. 513-514.
3. Slaughterhouse Cases, 16 Wallace 36 (1873) .
4. Griswold v. Connecticut, 381 U.S. 479 (1965).
5. Ibid. , p. 484.
6. Ibid. , pp. 486-487.
7. The Montana courts do not seem to have made significant
rulings or to have announced any new rights under the
provisions of Article III, Section 30.
8. Albert L. Sturm, "Trends in State Constitution-making
1966-1970," Prepared for Publication in William and Mary
Law Review 13 (1971) , p. 21 in prepared copy.
9. Illinois, Constitutional Convention 19 70, Committee on
the Bill of Rights, Proposal No. 1 (Springfield, 1970),
Section 14. Cited hereafter as Illinois Bill of Rights
Committee, Proposal No. 1.
10. Ibid.
11. 81 Corpus Juris Secundum, Sec. 214. Cited hereafter as
C. J.S.
12. 81 C.J.S. Sec. 215a.
13. 81 C.J.S. Sec. 215c.
14. South Dakota, Legislative Research Council, The Feasi-
bility of Abolishing or Modifying the Doctrine of
Sovereign Immunity in South Dakota (Pierre, 1967), p. 2.
Cited hereafter as South Dakota Legislative Research
Council, Sovereign Immunity.
15. Ibid.
16. 81 C.J.S. Sec. 216.
-297-
NOTES
17. Ronald B. Lansing, "The King Can Do Wrong. The Oregon
Tort Claims Act," Oregon Law Review 47 (1967-8) : 358.
18. William P. Tanner III, "Government Immunity in Kansas:
Projects for Enlightened Change," Kansas Law Review 19
(1971): 211. Cited hereafter as Tanner, "Government
Immunity. "
19. South Dakota Legislative Research Council, Sovereign
Immunity , p. 1.
20. Ibid.
21. Mower v. Leicester, 9 Mass. 247 (1812). The English
precedent is Russell v. Men of Devon, 100 Eng . Rep. 359.
22. Cohens v. Virginia, 19 U.S. (Wheat.) 264, 380 (1821).
23. Kaldahl v. State Highway Commission, Opinion No. 12071,
November 4, 1971.
24. See Stone v. Arizona Highway Commission, 381 P. 2d 107;
Mishoph V. Corning Hospital District, 359 P. 2d 457, and
Smith V. State, 473 P. 2d 937, 944.
25. For a list of state court cases which have abolished and
reaffirmed the doctrine, see Colorado, Legislative Council,
Governmental Liability in Colorado (Denver, 1968) ,
pp. 99-107.
26. Kawananahn v. Polyblank, 205 U.S. 349, 353 (1907).
27. A. J. Moore, Federal Practice (2nd ed., 1970), Sec.
20.07 [3], p. 2864. Cited hereafter as Moore, Federal
Practice. John E. H. Sherry, "The Myth That the King Can
Do No Wrong^" Administrative Law Review 22 (1969): 39, 43;
Cited hereafter as Sherry, "King Can Do No WrongJ'
28. Sherry, "King Can Do No Wrong" R,4 3.
29. Moore, Federal Practice, Sec. 20.07 [3], 2864.
30. William L. Prosser, Torts (2nd ed. , 1964), Sec. 125, p.
1001.
31. Tanner, "Governmental Immunity," p. 212.
32. Ibid.
-298-
NOTES
33. Walter Gellhorn and C. Newton Schench, "Tort Actions
Against the Federal Government," Columbia Law Review 4 7
(1947) : 722.
34. Arvo Van Alstyne, "Governmental Tort Liability: A Decade
of Change," Illinois Legal Forum (1966): 916, 921.
35. Harold W. Kennedy and Robert C. Lynch, "Some Problems of
a Sovereign Without Immunity," Southern California Law
Review 36 (1963) : 176.
36. Tanner, "Governmental Immunity," p. 213.
37. Ibid. , p. 230.
38. See, for example, Iowa Constitution, Article 1, Section 19.
39. See, for example, the Rhode Island Constitution, Article
1, Section II.
40. 16 C.J.S. Sec. 204(1) .
41. Hawaii, Legislative Reference Bureau, Article I : Bill of
Rights , Hawaii Constitutional Convention Studies (Honolulu:
University of Hawaii, 1968) , p. 119.
42. For sample wording of this provision, see Section 1.02
of the Model State Constitution. [National Municipal
League, 6th ed. rev. 1968 (New York, 1963, 1968)]. The
Mississippi Bureau of Public Administration also
recommended such a provision. [Mississippi, Bureau of
Public Administration, Yesterday's Constitution Today
(Oxford: University of Mississippi, 1960), p. 22.] The
Wisconsin provision [Art. I, Sees. 16 and 177 covers two
sections, the second of which reads: "The privilege of
the debtor to enjoy the necessary comforts of life shall
be recognized by wholesome laws, exempting reasonable
amount of property from seizure or sales for the payment
of any debt or liability hereinafter contracted."
Article II, Section 8 of the Puerto Rico Constitution
provides in part: "A minimum amount of property and
possessions shall be exempt from attachment as provided
by law. "
43. The South Carolina Constitution provides [Art. I, Sec. 1] :
"No person shall be imprisoned for debt except in cases
of fraud. "
-299-
NOTES
44. Illinois Bill of Rights Committee, Proposal No. 1,
Sec. 12.
45. Irving Brant, The Bill of Rights: Its Origin and Meaning
(New York: New American Library, 1965) , p. 23.
46. Sir Matthew Hale, The History of the Pleas of the Crown
(Lundon, Sollom Emlyn , 1788) , p. 83.
47. Emilie Loring, "Montana's Bill of Rights," unpublished
paper from Department of Political Science, University
of Montana, Missoula, p. 14.
-300-
CHAPTER X
NEW PROVISIONS
This chapter deals with three areas in which the Montana Dec-
laration of Riqhts is silent. Time considerations enforced
the decision to consider only these few of the rignts areas
wiiicn are open should the state decide to pursue the previously
discussed "little laboratory" function as the initiator of
new rights. The three areas discussed are: the rights of
persons under the age of majority, the right to be free from
aiscrimination and to be accorded the equal protection of the
laws , and one of the remedies sometimes suggested in the area
of consumer protection, the class action suit. Another re-
port for the Montana Constitutional Convention discusses
another issue particularly relevant to Montana, the rights of
Indians .
RIGHTS OF PERSONS UNDER THE AGE OF MAJORITY
According to a recent book on the rights of persons under the
age of majority, "no area of the law is in greater flux than
that of kids' legal rights. For almost every court decision
granting a specific right to a student or a minor, there is
another decision denying him the same right.' The problem,
is not that there are conflicting court decisions on the rights
of persons under the age of majority--that is true of other
areas of civil liberties law--but that there is not even a
broad outline of the types of rights young people possess.
In general, the assumption behind v;hat is called "juvenile
law" in the United States has been that minors need special
treatment at the hands of parents, courts, police, the state,
schools and other institutions. TJiis is based on the theory
that a case involving a youth in violation of the law is not the
same type of case as one involving an adult criminal. Ac-
cordingly, juvenile courts supposedly operate on a more flex-
ible set of standards and procedures than are used in the adult
courts. More stress, at least theoretically, is placed on
rehabilitation. This resort to special treatment, based on a
valid distinction between the adult criminal and the young of-
fender, has not been free of costs, however. Because they
are not considered criminal defendants, youths are not gener-
ally accorded the rights constitutionally guaranteed to cri-
minal defendants. In other words, they are not generally
protected bv constitutional standards of fairness and due
process of law such as the rignt of counsel, trial by peers
or a jury, the right against self-incrimination, and the right
to know the nature and cause of the accusation.^
-301-
NEW PROVISIONS
One example of how the courts have had difficulty deciding
whether children have the same rights as adults can be seen
in cases dealing with length of hair. An Ohio district court
cited an opinion by Justice Frankfurter in ruling that chil-
dren did not have the right — accorded to adults — to wear
their hair at any length they desired. Justice Frankfurter
had written on another matter that
it is obvious that the problem presented by the
facts of this case cannot be solved by reference to
cases concerned with the constitutional rights and
liberties of adults. Children, of necessity, can-
not be uncritically accorded those rights, and it
is foolish to say they can be. 3
But as the Montana Law Review has noted, this case has stan-
ding against it "virtually every other hair decision. "4
[As this report went to print (December 30, 1971), a
federal district court judge in Montana upheld a hair code
and with it, the suspension of a Hamilton High School
student. In doing so, the court placed the burden of
justification of hair length on the student, not on the regu-
lation. The above Montana Law Review article notes that,
in general, the burden of proof is placed on those who pro-
pound the regulation; they must show it to be actually
disruptive. ]
Most cases involving persons under the age of majority point
to the 1969 armband case. Tinker v. Pes Moines School Dis-
trict, where Justice Fortas , writing for the majority said:
In our system, state-operated schools may not be
enclaves of totalitarianism. School officials do
not possess absolute authority over their students.
Students in school as well as out of school are
•persons' under our Constitution. They are pos-
sessed of fundamental rights which the state
must respect, just as they themselves must respect
their obligations to the state. 5
This difficulty — that minors have fewer constitutional rights
than adults — is especially difficult to understand when it
is noted that they are liable for punishment for many more
offenses than are adults: disobedience, running away from
home, staying out late, associating with persons deemed "un-
desireable," being late for school, wearing their hair long
or wearing armbands, publishing opinions critical of school
administrators and so on.^
-302-
NEW PROVISIONS
In these anu other ways, a juvenile court process which was
designed to be a flexible, highly personalized and relatively
lenient system of dealing with youth offenders may tend to be-
come arbitrary, impersonal and punitive. Tliis situation has
not gone unnoticed; the U.S. Supreme Court has handed down
several decisions which have compelled some states to revamp
long-established practices and procedures in juvenile cases. ^
The general direction of Supreme Court decisions in this area
is increasinglv toward granting youths many of the procedural
safeguards adults possess. In doing so, the Court has re-
oeatedlv emphasized the differences between juvenile proceed-
ings and adult criminal proceedings and that it does not v^;ish to
convert the former into the latter.^ The Court has not held
that an accused juvenile is entitled to all the procedural
safeguards accorded an adult. It has held to be significant
certain state-level disparities of treatment between juveniles
and adults; however, it has not ruled procedural disparities to
be impermissible per se . ^
In general, the Court's decisions have been based on the due
process clause of the Fourteenth Aricndmcnt and have turned on
the question of whether a particular procedural right is one
of the essentials of due process and fair treatment. Five
broad procedural guarantees have been held to be binding on
juvenile courts: a juvenile charged with delinquency has the
right to receive written notice of the charge or factual al-
legations against him at an early enough date to prepare a
defense; he must be given a warning on the right of counsel;
he must be notified of his right to remain silent and he has
the right against self-incrimination at a delinquency hearing;
adjudication of his guilt must be based on the sworn testimony
of witnesses with the defendant's rights of confrontation and
cross-examination assured, and he is entitled to the presump-
tion of innocence^ in that his guilt must be proven beyond
reasonable doubt.
10
Court activity notwithstanding, there are still many questions
unresolved in the area of rights of persons under the age of
majoritv. Court activity in this area has centered around the
procedural rights at the adjudicative stage of proceedings;
even within this staqc of proceeding, there are unanswered
issues. Outside of the adjudicatory state of proceedings,
there are procedural questions in the pre-trial and dispositional
stages. For example, does a young person have the right to be
free from unreasonable searches and seizures? What are the
conditions of anv pre-hearing detention that he may be subjected
to? Should the involuntary confession standards of the type
suggested by the Miranaa decision (precluding subtly or overtly
coerced confessions and granting the suspect's right to have
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NEW PROVISIONS
counsel present) be more strictly applied in the case of juven-
iles who face the peril of being transferred for criminal
trial? In the dispositional state, does the juvenile have
the right to some agreed upon adequate treatment? Other exam-
ples of the difficult questions surrounding the procedural
rights which voung persons should possess could be cited. In
addition, there arc important questions concerning the substan-
tive riglits of voung persons.
For aid in resolving tliese questions, there are apnarcntlv
no formulas for deciding what rights to guarantee youths;
however, some broad guidelines which lend themselves to
constitutional explication can be seen in the following pro-
visions .
Various suggestions have been made — some by Montana citizens
grouDS — for constitutional provisions on the rights of per-
sons under the age of majority. One commentator, writing
that "there are no easy solutions to any of these problems,"
has added:
[A] minimal beginning would be an enforced recog-
nition that kids are people, with basic constitu-
tional rights under the law . . . Once these
fundamental rights have been guaranteed and en-
forced, modifications could be made which v;ould
take into account a person's age as a factor in
holding him. responsible for his actions. 12
Montana's Community Planning Coordinator, in conjunction with
the Rural America Project for Youth Development and Delin-
quency Prevention and staff members of the Community Coordin-
ated Child Care Project, has recommended the following pro-
vision for consideration by the Convention: "Every child and
youth shall have all the rights of a Montana person except
for those rights specifically precluded by law."^^ Other
provisions suggested by the .Montana Program Committee of the
American Friends Service Committee, include:
1. Every child and youth has the right to
that emotional, social, phvsical, educational and
moral environment necessary to attain his or her
full potential.
2. All parents shall have the right to guide
and influence the education and development of
their children.
3. There shall be no discrimination on the
basis of age for persons over the age of 18, ex-
cept for treatment of persons between the ages of
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NEW PROViS;rONS
18 and 25 who have been convicted of a felony,
and those under the age of 18 shall be guaranteed
all the rights -jf a person cciisiatent with their
maturity . •^'*
The second of the abovf; v^'ovisions is designed to insure that
parents have some rights 3gainst state pre-emption of their
authority over their children and to make certain that the
rights-of-children clause is not completely open-ended. An
example of the kind of conflict that could develop in the
area of governmental interference with the rights of parents
can be seen in a 1924 U.S. Supreme Court decision. Pierce v.
Society of Sisters.--^ In this case, the Court ruled:
[T]he fundamental theory of liberty upon which ail
governments in this Union repose excludes any gen-
eral power of the State to standardize its children
by forcing them to accept instruction from public
teachers only. The child is not the mere creature
of the Statej those who nurture him and direct his
destiny have the right, coupled with the high duty,
to recognize and prepare him for additional obliga-
tions . °
Accordingly, the Oregon Compulsory Education Act, v;hich re-
quired parents to send children between the ages of 8 and 16
to public schools , was declared an unconstitutional infringe-
ment of the liberty of the Fourteenth Amendment. The Court
said:
[T]he right to conduct schools [is] property and
the parents and guardians, as part of their liberty,
might direct the education of children by selec-
ting reputable teachers and places .... [W]e
think it plain that the [Oregon Compulsory Education]
Act . . . unreasonably interferes with the liberty
of parents and guardians to direct the upbringing
and education of children under their control. ^^
In the final analysis, the main question is not whether the
rights of young persons under the age of majority are iden-
tical with those of adults. As the recent White House Con-
ference on Children reported to the President, the issue is
"how the limits of adult control may be drawn so as not to
infringe on the child's right to grow in freedom in accor-
dance with the spirit of civil liberties embodied in the
Constitution. " 18
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NEW PROVISIONS
EQUAL PROTECTION AND FREEDOM FROM DISCRIMINATION
Rights of Aliens
Section 25 of Article III of the Montana Constitution announces
certain rights accorded to aliens:
Aliens and denizens shall have the same right as citi-
zens to acquire, purchase, possess, enjoy, convey,
transmit, and inherit mines and mining property, and
milling, reduction, concentrating, and other works,
and real property necessary for or connected with the
business of mining and treating ores and minerals:
provided that nothing herein contained shall be con-
strued to infringe upon the authority of the United
States to provide for the sale or disposition of its
mineral and other public lands.
This provision, granting aliens and denizens (persons in the
process of becoming citizens) the same rights as citizens with
respect to investing in the state's mining industry, has a
curious history. As the provision reached the floor in the 1889
Convention, it provided: "No law shall be enacted which will
prevent persons of foreign birth or residence from becoming the
owners of mines or mining property, except under the restric-
tions contained in the laws of the United States relative to
the location thereof." Delegate Dixon immediately moved to
aiTiend it to roughly the current wording. But Delegate Collins
argued that the section did not have a place in the fundamental
law--that it was "legislation pure and simple."-'-^ Collins
believed that the section did not refer to rights and liberties
and therefore should not be placed in the Declaration of Rights.
The thrust of the debate was then revealed when Delegate Dixon
justified the constitutional statement of the inheritance
right as an inducement to foreign capital. Then, Delegate Clark
said:
[I]t is well that the people of Montana should be
allowed a certain liberty and scope in the sale of
their mines to foreign capitalists who have plenty
of money, thereby to induce them to come here and
build large smelting plans and large mills and other
enterprises of that kind, which would necessarily in-
volve the expenditure of large sums of money and
result in the fostering and development of other great
industries in this country. 2*^
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NEVJ PROVISIONS
Delegate J. K. Toole of Lewis and Clark added his weight to
the argument favoring the recruitment of foreign capital,
saying "I concur in the suggestions of [Clark] . . . that
we need and want and ought to invite the acquisition, es-
pecially as directly connected witn the development of the
mining interests of this country, of foreign capital."^-'-
In later debate, delegate Whitehill attempted an amendment
which would have extended the rights of alien residents to
possess all forms of property, the same as native born
citizens. The Whitehill amendment, in effect, would have
incorporated into the 1889 Constitution one of the few pro-
visions of the Colorado Declaration of Rights which Mon-
tana's Convention of 1884 passed over. As noted before,
the Montana Declaration of Rights was almost a carbon copy
of the Colorado Declaration. The Colorado Constitution,
in Article II, Section 27, provides that "aliens, v/ho are
or may hereafter become bona fide residents of this state,
may acauire, inherit, possess, enjoy and dispose of property,
real and personal, as native born citizens.'' Delegate J. R.
Toole of Deer Lodge spoke against the Whitehill amendment
urging support for "the privilege of disposing of mining
property to non-residents." The Whitehill amendment was
lost and the provision stood substantially as it reads
today. "^^ There is general agreement among commentators on
the Montana Constitution that this section is obsolete and
ought to be repealed. 23 However, neither of the two groups
(the Legislative Council or the Constitution Revision Com-
mission) suggesting its repeal made a point of stating the
Montana Declaration's silence on two closely related issues:
equal protection of the laws and freedom from discrimination.
Currently, there is no Montana constitutional provision
covering either area.
Involuntary Servitude
Another provision of the Montana Constitution is relevant to
a discussion of freedom from discrimination and equal pro-
tection of the laws. Article III, Section 28 provides:
'There shall never be in this state either slavery or invol-
untary servitude, except as punishment for crime, whereof
the party shall have been duly convicted." Both the Legisla-
tive Council study and the Constitution Revision Commission
deem tnis section unnecessary; botii propose that it should
be deleted. The Legislative Council study notes that the
federal Constitution's Thirteenth Amendm.ent guarantees that
there will be no involuntary servitude in the nation. '^^
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NEV; PROVISIONS
These two studies arc probably correct in saving there is no
necessity for continued state-level recognition of this right;
tlic substantial nuestions currentlv being raised surrounding
involuntarv servitude are mainly challenges to federal mili-
tary conscrintion. If the state were to make any constitu-
tional statement on its own military procurement practices
(such as exempting from bearing arms those with conscientious
scruples) , it would be advisable that such a statement be
exDlicit rather than rely on an involuntary servitude concept
which is Dart of the legacy of the Civil \Jar. liov/ever, the
primary question v;ith which such a orovision dealt--the human
status of racial and cultural minorities--is still very rele-
vant today. The problem is oerhaps less one of "involuntarv
servitude" than of various discriminatory practices , unequal
applications of the laws and unrealized potential for minority
community self-determination. 25 only a more specific statement
of what constitutes involuntarv servitude v;ould applv it to
immediate problems in these areas.
Equal Protection of the Laws
In the earlv 1640s, the magistrates and freemen of Massachusetts
were engaged in a dispute over the enactment of a general,
written Body of Liberties. The magistrates exacted concessions
from the freemen to provide that such a document should not be
binding, but only advisory, and in considering any question to
which the Bodv of Liberties did not speak, the magistrates were
left to decide the matter in accordance with the "word of God. "2^
Section 2 of this weakened Body of Liberties is relevant in
this context; it extended the Magna Carta provision on the
denial or delay of the right of justice to effect equal
protection of the laws:
Every person within this Jurisdiction, whether Ihhabi-
tant or foreiner shall enjoy the same justice and law,
that is gencrall for the plantation, which we consti-
tute and execute one towards another without nartial-
itie or delay.
Similar lanauage eventuallv became part of the Fourteenth T^end-
ment to the United States Constitution: "Nor shall any
State . . . denv to any person within its jurisdiction the equal
protection of the laws." The Fourteenth Amendment forbids the
states from denying the eaual protection of tlie laws; to reoeat
this prohibition is more an af f irniation of the Federal principle
than the enunciation of a new state commitment to equal applica-
tion of the laws. If the state desired to go beyond the federal
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NEW PF^OVISIONS
Fourteenth Amendment, constitutional wording could be included
guaranteeing equal protection of the lav;s regardless of sex,
income, or other specific attributes not covered by the
Fourteenth Amendment.
Freedom From Discrimination
Contrary to the apparent innocuousness of a state commitment
to equal protection would be the potential of a strong clause
on the freedom from discrimination. Although the federal
government has been quite active in this area since the days
of the 1954 school desegregation decision, the kind and amount
of federal activity is still at issue. For example, the U.S.
Senate iias yet to pass a House approved Eaual Rights 7»jnend-
ment which would announce that there shall be no discrimina-
tion on the basis of sex. In fact, it was the Supreme Court,
not Congress , that recently took a step in ruling that what
it called "arbitrary" discrimination on the basis of sex was
unconstitutional. At issue was an Idaho lav/--similar to a
Montana Iav;--V7hich gave preference to males in the administra-
tion of estates. 2^
The two most important federal enactments affecting the rights
of wom.en since the adoption of the federal Nineteenth Amend-
ment are the Equal Pay Act of 1963 and Title VII of the Civil
Rights Act of 1964. The Equal Pay Act prohibits all employers
covered by the Federal Labor Standards Act (FLSA) from paying
wage differentials based upon sex for equal v.'ork on jobs, the
performance of which requires skill, effort, rcsponsibilitv ,
and which are performed under similar working conditions.
The Act is administered by the Wage-Hour Division of the Depart-
ment of Labor and the Secretary of Labor is authorized to seek
injunctions for violations. As one commentator has written,
"the overall effectiveness of this legislation is limited by
the number of exceptions permitted and the exemptions from
coverage bv FLSA."^^ Title VII of the Civil Rights Act of
1964 prohibits sex-based discrimination by employers, labor
organizations and emnloyment agencies except in circumstances
in which sex is a bona fide occupational qualification
reasonably necessary to the operation of a business. The sex
discrimination orovisions of this Act "constitute the beginnings
of a broad attack against sex discrimination, but much remains
to be done if the promise of the 1960 's is to be fulfilled."
In broader questions of civil rights, the federal government
seems to have done little better, perhaps even worse. A
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NEV; PROVISIONS
recent annual staff report of the U.S. Civil Rights Cominis-
sion said that the federal government's enforcement of civil
rights laws improved only from "noor to marqinal" during the
past year. The staff report laid principal bleime for the
lax effort as the doorstep of the Nixon Administration. Rev.
Theodore M. llesburgh, the Commission chairman and president
of Notre Dame University, disagreed with the staff, but only
on the point of who was to blame. llesburgh said that the
main problem mav have more to do with the machinations of the
federal bureaucracy. Last year's report from this agency
noted inertia and hostility that could nullify the effect of
recent federal civil rights legislation.-^^
The point is not whether the administration or the federal
bureaucracy is to blame; rather, it is that federal activity
in this field does encounter obstacles which apparently have
limited its effectiveness. One should not assume that the
enactment of federal legislation is anything but a beginning
in the area; perhaps further activity in this area^by the .
states is well- justified.
Several states provisions prohibiting various form.s of dis-
crimination display a wide variety of phrasings and applica-
tions. Most are pnrased in language broadly referring to
"the enjoyment of civil or political rights" or "rights,
privileges and immunities." A typical provision is that of
Article I, Section 2 of the Michigan Constitution:
No person shall be denied the equal protection of
the laws; nor shall anv person be denied the en-
joyment of his civil or political rights or be
discriminated against in the exercise thereof be-
cause of religion, race, color or national origin.
The Legislature shall implement this section by
appropriate legislation.
The Illinois Constitutional Convention Committee on the Bill
of Rights, after reviewing possible alternatives to anti-
discrimination provisions, decided that the potential affect
of provisions of the Michigan variety was limited. The com-
mittee decided that to insure that such provisions would
apply in a forceful way to private as well as public discri-
mination, they sliould be more explicit as to the areas they
covered. The provision the Illinois committee drafted as a
supplement to the clause guaranteeing the equal protection
of the laws , reads :
Every person shall have the right to freedom on the
basis of race, color, creed, national ancestry or
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NEW PROVISIONS
sex in the liiring and promotion practices of any em-
ployer or in the sale or rental of property. These
rights shall be enforceable v\'ithout action by the
General Assembly, but the General Assembly may es-
tablish reasonable exemptions relating to these
rigiits and may prescribe additional remedies for the
violation of these rights.
The provision is now Article I, Section 17 of the Illinois Con-
stitution. ^■'"
The Revised Codes of Montana contain two statutes on discrimi-
nation. .Section 64-211 reads:
No person, partnership, corooration, association, or
organization owning or managing any place of public
accomodation or amusement shall discriminate against
any person or group of persons solely on the ground
of race, color or creed.
Sections 64-301 to 64-303 recognize the civil right to be free
from discriminations based on race, creed, color, sex and
national origin as a civil right. In addition to these sta-
tutes. Article XI, Section 9, of the Montana Constitution reads
in part: "nor shall any person be debarred admission to any
of the collegiate departments of the university on account of
sex. "
The Montana statutes and constitutional provision fall shy of
the protection afforded by the Illinois Constitutional provi-
sions. After hearing many witnesses, the Illinois committee
decided to limit its provisions to the areas of employment and
the sale or rental of property — that is, they cover private
discriminations beyond fair employment practices . The New
York Constitution contaxns a nrovision in Article I, Section
I, which speaks broadly to prohibit all private as well as
public discrimination:
No person shall, because of race, color, creed, or
religion, be subjected to any discrimination in his
civil riahts by anv person or by any firm, corpora-
tion, or institution, or by the state or any agency
or subdivision of the state.
Even this provision does not explicitly extend the freedom, from
discrimination in the manner accomnlished by the Illinois Dro-
vision. The real potential of the Illinois provision is that
it creates a new right for persons in the state. Any person
aggrieved could have access to existing judicial remedies for a
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NEW PROVISIONS
violation of the right by the last clause of the provision
which states: "these rights shall be enforceable without
action by the General Assembly . . . ." This is in contrast
to the current Montana statutory remedy for public discri-
mination, which is a misdemeanor conviction.
It can be argued that Montana, with a significant and, cul-
turally speaking, priceless minoritv population, is especiallv
suited to the adoption of strong anti-discrimination provi-
sions enforceable by those affected. This is even more the
case given the increasing cultural awareness and pride of
minorities within the state, as well as the legitimate con-
cerns of emerging women's rights groups.
The Illinois Convention also did some innovative work in
other areas of discriminatory practices. Two additional pro-
visions were incorporated into the state's Constitution, one
covering discriminations against the handicapped, the other
prohibiting sex discrimination. Interestingly enough, neither
of these provisions hints at the aggrieved 's right to enjoin
discriminatory practices as does the provisions on discrimi-
nation in employment practices and in the sale and rental of
property. Article I, Section 19 of the Illinois Constitution
provides :
All persons with a physical or mental handicap shall
be free from discrimination in the sale or rental of
property and shall be free from discrimination un-
related to ability in the hiring and promotion prac-
tices of any employer.
The sex discrimination provisions do not guarantee freedom from
private discriminations. Article I, Section 18 provides: "The
equal protection of the laws shall not be denied or abridged on
account of sex by the state or its units of local government
and school districts."
Conclusion
It is significant that Montana's eighty-year-old provision
giving aliens the right to invest in the state's mining indus-
try could be replaced by one guaranteeing and extending the
principle of equal protection of the laws by giving to all
persons who bear the burden of discrimination the power to con-
front and eradicate it through the judicial process. At any
rate, this is certainly one of the most sensitive areas of
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NEW PROVISIONS
possible constitutional revision and the place where a gap in
the T'lontana Declaration of Rights is most clear. A signifi-
cant commitment to equal protection of the law and the freedom
from various discriminations could be made at the level of the
fundamental law where none now exists.
CONSUMER PROTECTION MiD THE CLASS ACTION SUIT
The Frustrated Consumer
Another area of a potential new right is that of consumer pro-
tection. Although the laws of contract and the supposed com-
petitive market svstem are sometimes thought to be reliable
safeguards against practices unfair to the consumer, such often
is not the case.-^^ In an age when advertising's informational
qualities have disintegrated to the point of sheer hyperbole,
this perhaps is not too surprising. Philip Sciirag has noted:
American manufacturers are now finding the cost of
expert supervision over quality control to be so
great that they are frequently willing to accept a
high rate of defective products; it is cheaper to
replace merchandise for those consiimers who com-
plain than to ensure that few defective products
are distributed. -^-^
The Council of State novcrnmcnt has listed some of the major
causes of current consumer concern. One of these centers
around the health and safety of various goods. Unlike criti-
cisms offered belov; of the market place itself, this area has
been the target of considerable legislation and regulatory
activity. Such things as pure food and drug laws, labeling
of poisons and explosives, control of the sale of drugs, meat
inspection, produce grading, labeling of feeds and pesticides
and other activities are examples of some success. The Coun-
cil of State Governments has noted that there are still some
legal obstacles to optimum compliance with health standards;
in aeneral, the suggested remedies concern beefing up the
institutions which are charged with the enforcement of the
standards .
34
Another area of concern is the problem of deceptive and fraud-
ulent selling. It is difficult to define precisely the problem —
not only is it difficult to ascertain what is and is not decep-
tive, it is also hard to formulate standards which distinguish
between practices which are undesirable and those which are illegal,
A wide range of old and new practices are common to deceptive
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NEW PROVISIONS
advertising. For example, one of the salient characteristics
of much advertising is the use of meaningless terms. Jargon
that is designed to evoke a favorable response without saying
anything is found on billboards, store counters, packages and
in the media. As this kind of advertising is generally ac-
cepted as routine, the old rule of caveat emptor — let the
buyer beware — is especially applicable to a situation in which
maximum expectation is extracted on minimum information.
Other deceptive practices include giveaway enticements such
as trading stamps, puzzle prizes, and free items, referral
selling, bait and switch tactics, fictitious discounts, high
pressure selling, short weights and measures, misrepresenta-
tion of standard products and even warranties . -^^ The laws
dealing with misrepresentation and warranty, complex as they
seem, apparently are not as adequate as they might be.-^°
Considerable dissatisfaction with the marketing system itself
is evidenced in several ways. Consumers tend to feel unrepre-
sented in the ways policy is determined in the marketplace. ^7
That is, there is considerable disenchantment with the old
idea that the dollar is an effective ballot in the marketplace.
John Kenneth Galbraith has written of the withering of sup-
posed "consximer sovereignty" in the face of various marketplace
imperatives . ^°
Other consumers contend that the marketplace provides no place
for complaints to be systematically aired and resolved. Just
as in the case of the federal bureaucracy in government, it
is difficult in the impersonal marketplace to fix responsi-
bility; it also is difficult to rejuvenate the marketplace
once an item is found to be unsatisfactory for whatever reason,
Another disconcerting and symptomatic aspect of the marketplace
is the difficulty of making value comparisons. The number of
competing items, unfair packaging practices and the use of
meaningless terms and slogans such as "economy," "giant,"
"bargain" or "why pay more?" tend to mislead and destroy the
solid base for making good value choices. In light of the
above increasingly commonplace criticisms, it may be somewhat
suprising that "consumers lack the oldest and most fundamental
civil liberty: the right to a day in court. "'^^
Natural barriers to the prospective consumer client are high.
For example, the costs of litigation are so exorbitant that
they are scarcely justified by the amount of even a major
consumptive purchase. As Bess Myerson Grant stated before a
39
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NEW PROVISIONS
congressional hearing on consumer affairs: "[Our laws tell
the consumer] to spend thousands of dollars on a lawsuit to
recover hundreds of dollars which he lost in a swindle ." ^-'■
The core of the problem is one of reforming existing legal
remedies and of improving the consumer's opportunity to con-
front his abuser. Several approaches suggest themselves for
consideration: the institution of some decentralized, in-
formal judicial practice to decide small-claims, a consumer
education program, regulation of the seller, a state-level
consumer protection agency or changing the buyer-seller
relationship. Other possibilities, such as the organization
of consumer pressure groups, require collective effort of
a kind distinct from constitutional action. What will be
attempted below is a discussion of one of the ways the Coun-
cil of State Governments has suggested for changing the
buyer-seller relationship: the class action suit is dis-
cussed as one form of a right of citizen access to the
judicial system for rectification of wrong. What will be
said about the class action suit for consumer protection
also is applicable to the discussion of the citizen's right
to sue to enforce standards of environmental quality and
other citizen interest suits.
The Class Action
The problem to which the class action suit speaks is indi-
cated by two commentators who wrote in 1940:
[M]odern society seems increasingly to expose men
to such group injuries for which individually
they are in a poor position to seek legal redress,
either because they do not know enough or because
such redress is disproportionately expensive. If
each is left to assert his rights alone if and
when he can, there will at best be a random and
fragmentary enforcement, if there is any at all.
This result is not only unfortunate in the parti-
cular case, but it will operate seriously to im-
pair the deterrent effect of the sanctions which
underlie contemporary law. The problem of
fashioning an effective and inclusive group
remedy is thus a major one.
The legal remedy which the processes of mass production, dis-
tribution and consumption seem to require is of a particular
sort. Since it is likely that a wrong initiated by a pro-
ducer will affect not just one or a few, but a whole class of
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NEV>' PROVISIONS
persons, and since an injurv of this sort can be enormous in
tlic aggregate wliile still too small to justify the cxoense of
litigation bv one victin;, increasing concern has been direc-
ted toward allowing persons to litigate as a class. Hence,
the tern class action.
43
The class action suit
for a variety of smal
used by deoositors in
for raisreoresentation
cipients to challenge
seeking orotection of
recover money wrongfu
recover wrongfully wi
Montana, by citizens
thus far has provided effective redress
1 litigants. Class actions have been
savings and loan associations to recover
in the sale of stock, by welfare re-
welfare regulations, by minority grouos
their civil rights, bv taxpayers to
llv aopropriated , by v/age earners to
thheld pay, and, more recently, in
for environmental damaaes
4 2[-
One commentator, writing on the special apnlicabilitv of the
class action suit to consumer protection has said:
Consumers as much as any group are frequently dam-
aged in relatively small amounts, whether by ille-
gal overcharges, broken warranties, or deceptive
trade practices. A slight overcharge of many con-
sumers can easily amount to thousands and even to
millions of dollars of illegal profit. Individual
litigation is unlikely to deter a dishonest seller
from a wrongful course of conduct that is producing
enormous profits, for he can absorb the expense of
paying isolated claims or defending aaainst them
as a cost of doing business. However, a suit by an
entire class of similarly injured consumers would
quickly make such conduct unprofitable. Thus,
class suits , and even the threat of class suits ,
can have a "therapeutic effect" on the conduct of
business activities • ^^
Justice Story's Equity Pleadings outlined the traditional com-
mon law view of class suits. Three basic conditions are
offered for a cause of class action: (1) the question must be
one of common or general interest and the suit or defense must
be for the benefit of the whole; (2) those who sue, or defend,
must fairly be presumed to represent the rights and interests
of the whole, and (3) the parties may be very numerous, have
separate and distinct interests and bring such a suit only
where it is impracticable to bring them all before the court
The old Field Code provision on class actions codified these
class action statutes.
46
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NEW PROVISIONS
[Wjhen the question is one of a common or general
interest of many persons, or when the parties are
very numerous and it may be impracticable to bring
them all before the court, one or more may sue or
defend for the benefit of the whole. '
Twelve states have adopted the Field Code provisions (or very
similar provisions) at the statutorv level. ° Most of the
states whicii rely on the common law permit class actions only
in cases of equity. Other states, Montana included, follow
some version of federal Rule of Civil Procedure 23 or its 1966
amended form. "
The current Montana statutory provisions on the class action
are contained in the Rules of Civil Procedure as found in the
Revise_d_ Codes of Montana, 1947, Volume 7. Rule 23 states the
prerequisites of a class action:
One or more members of a class may sue or be sued
as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims
or defenses of the representative parties are
typical of the claims or defenses of the class , and
(4) the representative parties will fairly and ad-
equately protect the interests of the class.
Rule 23 (b) further defines the circumstances under which a
class action can be maintained. In addition to the above pre-
requisites, this section provides that the class action is
justifiable only if the nrosecution of separate action would
create the risk of varying adjudications or impede the ability
of individuals to protect their interests. Tv;o other require-
ments also are specified. Final injunctive or declaratory
relief must result from the refusal of the party opposing the
class to act on grounds generally acceptable to the class.
The court also must find that the concerns expressed by the
class predominate over individual members of the class and
that the "class action is superior to other available methods
for the fair and efficient adjudication of the controversy."
In determining this, the court can consider several other
factors explicit in the class action rule.
The Montana supreme Court recently refused to assume supervi-
sory control over a case which a district court had admitted
as a class action. The suit was lodged by some 1,500 north-
west Montanans against the Anaconda Company operations in
Columbia Falls environmental damaqes in the amount of $14
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NEW PROVISIONS
million. The effect of the court's decision was to permit
the district court to continue hearing the suit as a class
action. ^^
In general, courts have held there are four prerequisites
to the maintenance of a class proceeding: (1) parties too
numerous to bring before the court by use of joinder — a
consolidation of all causes of action into one suit; (2) a
defineable class; (3) a question of common interest to the
class; (4) plaintiffs who adequately represent the class.
Cases arising on the question of the proper number required
to bring a class action have set minimums ranging from three
to 100.^-^ The main requirement seems to be that they be so
numerous as to make a joinder impracticable.
Under the problem of defineable class , courts have required
that the class be of some uncertain minimum size and that it
also have outer limits that permit the class members to be
distinguished. The court must be able to determine who is
bound by its decision because later claims by persons not
part of the class could cause problems without some require-
ment of this sort. On the other hand, too strict an inter-
pretation of this requirement could quickly preclude all
class litigation.
The most basic requirements for a class action is that there
be a question of law or fact of common interest to the class.
As indicated in Chapter III, questions of common interest and
common good do not lend themselves to easy explanation. Some
courts have adopted guidelines designed to clarify this point.
These include: applying compulsory joinder to stop class
actions (compulsory joinder is the idea that any class action
involving separate injuries occurring at different times and
giving rise to individual causes of action would be disallowed) ; 52
generally disallov/ing class suits for monetary damages ;5-^
denying the suit if the class does not have a common interest
in the relief sought, and, in a few courts, requiring the exis-
tence of a limited common funds as a prerequisite to a class
action. ^^
The fourth requirement for a class action is one not mentioned
in the Field Codes or in Justice Story's comment on the com-
mon law: the party must adequately represent the class on
whose behalf litigation is brought. Some courts have merged
this concept v/ith that of common interest and require a "com-
munity of interest" betv;een the plaintiffs and the class
members.-'-' Generally speaking, adequate representation means
there can be no collusion between the interests of other mem-
bers of the class. On this point, courts hove tended to be
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NEW PROVISIONS
more willing to find adequate representation in cases where
the class members have a joint interest than in cases where
the claimants are strangers to each other.
Auequacy of representation is also a constitutional require-
ment if a judgment in a class suit is to be binding on the
absent members of the class. To hold otherwise, according
to the U.S. Supremo Court, would deny due process to the ab-
sent members. ^° If a person is adequately represented by
tne plaintiff, he is bound by the decision under a recog-
nized exception to the Anglo-American law. The exception
proviaes that
the juugment in a "class" or "representative"
suit, to which some members of the class are
parties, may bind members of the class or those
represented who were not made parties to
it ... . This court is justified in saying
that there has been a failure of due process
only in those [class actions] where it cannot
be said that the procedure adopted fairly in-
sures the protection of the interests of ab-
sent parties who are to be bound by it.
The concept of adequate representation--based on represen-
tation of absent members of the class--is different from the
type v/hich must be established to initiate a class action
at the outset. Thus, while the plaintiff may pass the first
standara and be allowed to represent his class initially, he
may not satisfy the constitutional standard when the judg-
ment is souaht to be appliea to an absent class member. At
that point, if the representation is adjudged constitutionally
inadequate, the initial judgment would not bind absent members
of the class. ^^
In conclusion, one commentator has written:
At a time when there is increasing documentation
of widespread consumer exploitation, state courts
should be less rigid in their attitudes toward
class proceedings and more sensitive to the need
of consumers for increased protection. Disre-
spect for a legal system is likely to develop
when its laws promise more rotection than they
provide. Unless the law supplies an economically
feasible procedure for persons to enforce their
rigiits, violation of those rights is encouraged.
Class litioation is one way to help insure that,
in practice as well as theory, every wrong shall
have a remedy in our courts.-*^
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NEW PROVISIONS
In addition, the Council of State Governments has referred to
state activity in this area as an "imperative for federalism.'
Federal, state and local officials and units of gov-
ernment will doubtless increase their actions in re-
lation to the economic welfare of consumers. This
appears desireable for the problems are serious ,
fundamental, and varied. Certain action in relation
to them is best suited to each level of government,
and some, as consumer education, may involve all
levels. No level of government is competent to deal
with all consumer problems and interest. Combined,
in concert, they can.^'-'
To be sure, not much activity in the area of consumer protec-
tion can be found at the level of state constitutions. As
noted in Chapters VIII and IX, there has been some activity
in the area of the citizen's riglit to sue government and cor-
porations. One example of a consumer protection proposal can
be seen in the defeated Maryland Constitution in 19G8. Sec-
tion 9.07 proviued: "The General Assembly shall provide by
law for the protection and education of the citizens of the
state against harmful and unfair business practices." Such a
orovision would leave the auestion of the class action to the
legislature; indeed, it substantially leaves to the legisla-
ture the whole question of consumer protection. It reauires
no institutional change (such as establishing an office for
consumer com>plaints) , nor does it provide remedy for citizens
when they become educated on a matter of importance to con-
sumers. Another alternative is some broad statement of the
right of an adversely affected class of citizens to a day in
court.
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CHAPTER X
NOTES
1. Jean Strouse, Up Against the Law (New York: Signet Books,
1970) , p. xi . Cited hereafter as Strouse, The Law .
2 . Ibid . , p. xii .
3. Cordova v. Chonko, 315 F.Supp. 933 (N.D. Ohio 1970),
citing May v. Anderson, 345 U.S. 528 (1952) . Both cited
from James D. Moore, "In-hair-ent Rights and Tonsorial
Tutelage," Montana Law Review 3 2 (1971): 299-300.
4. Ibid. , p. 300.
5. Tinker v. Pes Moines School District, 393 U.S. 503 (1969).
6. Ibid.
7. Daniel A. Rezneck, "The Rights of Juveniles," The Rights
of Am.ericans, ed. Norman Dorsen (New York: Random House,
1970), D. 469. Cited hereafter as Rezneck, "Juveniles."
8. In re Winship, 397 U.S. 358, 359 (1970); In re Oault, 387
U.S. 1, 30 (1967); Kent v. U.S. , 383 U.S. 541, 555 (1966).
Rezneck, "Juveniles," dv . 469-470.
Ibid. , pp. 470-472.
See Miranda v. Arizona, 384 U.S. 436 (1966). See also
Chapter VI, Police Interrogations.
12. Strouse, The Law, p. xiii.
13. Letter from Oerry Fenn to Montana Constitutional Convention
Commission, November 10, 1971.
14. Letter from r;errv Fenn to Montana Constitutional Convention
Commission, November 9, 1971.
15. Pierce v. Society of Sisters, 268 U.S. 510 (1924).
16. Ibid. , p. 535.
17. Ibid. , pp. 534-35.
IB. U.S., White House Conference on Children, Report to the
President (Washington D.C.: U.S. Oovermrient Printing
Office, 1970) , p. 351.
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19. Montana, Constitutional Convention of 1889, Proceedings
and Debates of the Constitutional Convention (Helena:
State Publishing Co., 1921), p. 126.
20. Ibid. , p. 127.
21. Ibid. , p. 128.
22. Ibid. , p. 268.
23. Montana, Legislative Council, The Montana Constitution,
Report No. 25 (Helena, 1968), p. 15. See also, Montana,
Constitutional Convention 1971-1972, Constitutional
Convention Commission, Constitutional Provisions Proposed
by Constitution Revision Commission Subcommittees, Mon-
tana Constitutional Convention Occassional Paper No. 7
(Helena, 1971) , p. 46.
24. Ibid. For the text of the federal Thirteenth Amendment,
see Appendix D.
25. The concept of cultural minority self-determination and
self-government is dealt with in a subseauent report on
the rights of Indians.
26. Massachusetts Body of Liberties, Deceml)er 10, 1641, Section
1. Richard L, Perry, Sources of Our Liberties (Rahway:
Quinn and Boden Co., Inc., 1959), p. 148.
27. The Missoulian, November 23, 1971, p. 1.
28. Pauli Murray, "The Rights of Women," The Rights of Americans,
ed. Norman Dorsen. (New York: Random House, 1970) , p. 532.
29. Ibid. , p. 539.
30. Billings Gazette, November 17, 1971, p. 2.
31. Illinois, Constitutional Convention of 1970, Synopsis: Bill
of Rights (Springfield, 1970) , Section 22.
32. Philip C. Schrag, "The Rights of Consumers," The Rights of
Americans, ed. Norman Dorsen (New York: Random House, 1971) ,
p. 128 makes this point. Cited hereafter as Schrag, "Con-
sumer. "
33. Ibid. , p. 131.
34. Council of State Governments, Consumer Protection in the
States (Lexington: Council of State Governments, 1970), pp.
8-9. Cited hereafter as CSG, Consumer Protection.
35. Ibid. , pp. 9-11.
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36. Schraq, "Consumers," n. 134.
37. CSn, Consumer Protection, p. 7.
38. See, generally, John Kenneth nalbraith. The New Industrial
State (Boston: Houghton, flifflin, 1967).
39. CSn, Consumer Protection, p. 7.
40. Schrag, "Consumers," p. 134.
41. Cited from Ibid. , p. 135.
42. Harry Kalven, Jr. and Maurice Rosenfield, "The Contemporary
Function of the Class Action Suit," University of Chicago
Law Review 8 (1940-41): 686.
43. Laird C. Kirkpatrick, "Consumer Class Litigation," Oregon
Law Review 50 (Fall, 1969) : 21. Cited hereafter as
Kirkpatrick, "Class Litigation."
44. Ibid.
45. Ibid.
46. Joseph Story, Equity Pleadings (Boston: Little Brown and
Co., 1892), Sec. 97 at p. 102.
47. New York was one of the first states to adopt the Field
Code. See New York Laws 1849, Ch. 438, Sec. 119.
48. Kirkpatrick, "Class Litigation," p. 23.
49. Federal Rules of Civil Procedure 23, 1 F.R.D. XCII (1940).
50 . State ex rel. Anaconda Aluminum Company v. District Court ,
Order No. 12148.
51. Kirkpatrick, "Class Litigation," notes 19 and 20, p. 24.
52. According to one commentator, this concept amounts to a
plain denial of the Field Code reauirement of only a com-
mon interest among class members, not that they satisfy
the compulsorv joinder test of unity of interest. Most
courts recognize the scope of class actions extends be-
yond that of compulsory joinder. Kirkpatrick, "Class
Litigation," p. 26.
53. The above-discussed Montana Supreme Court decision allowed
a class suit for monetary damages. In addition, the law is
fairly clear that in the case of a class action for monetary
damages, it may be maintained even if there are several
claims brought by class members.
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54. This concept is used to insure that there is an equitable
division of the fund among the claimants. One suing
argues that there is only a limited amount of resources
available to pay the claims and that to permit separate
suits runs the risk of inequitable claim payment.
55. Kirkpatrick, "Class Litigation," p. 34.
56. Hansberry v. Lee, 311 U.S. 32 (1940).
57. Ibid. , pp. 40-42.
58. Mullare v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950) .
59. Kirkpatrick, "Class Litigation," p. 40.
60. CSG, Consumer Protection, p. 29.
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CHAPTER XI
CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
This chapter explores briefly two broad contemporary concerns
and some of their rights issues. The first essay discusses
the procedural rights of persons with low income who are
involved in various proceedings. The essay also deals with
recipients of social services--particularly the necessities
of life. The second essay discusses various rights issues
in the area of population growth limitation.
LOW- INCOME PERSONS AND THE BILL OF RIGHTS
Procedural Rights and the Low-Income Person
An example of the effort to establish fair procedure is in the
area of the procedural rights of persons of low income. The
federal government, especially the Supreme Court, in the last
few years has recognized that an element of fairness is missing
unless consideration is given to an accused's ability to pay.
A system of justice which made no effort to take this ability
into account quickly would be subject to the charge that it
administered a class-oriented justice, that it administered
justice only to those who could afford to pay the bill.
One of the earliest Supreme Court decisions in this area dealt
with an Illinois statute giving persons convicted in criminal
trials a right of review. Ordinarily, a stenographic transcript
of the proceedings is necessary in order to adequately prepare
the necessary legal documents for such review. Under the
Illinois law, such transcripts were provided free of charge
only to indigents sentenced to death. Appellants contended
this statute denied adequate appellate review to the poor
and thereby violated the Fourteenth Amendment. In agreeing
with them, the Court noted that "providing equal justice for
poor and rich, weak and powerful alike is an age-old problem.
People have never ceased to hope and strive to move closer to
this goal . "-'-
Citing the Magna Carta's prohibition against the sale or
denial of justice, the Court continued:
In this tradition, our own constitutional
guarantees of due process and equal protection
both call for procedures in criminal trials which
allow no invidious discriminations between persons
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
and different groups of persons. Both
equal protection and due process emphasize
the central aim of our entire judicial
system — all people charged with crime must,
so far as the law is concerned, "stand on
an equality before the bar of justice in
every American court. "2
Surely no one would contend that either a
State or the Federal Government could con-
stitutionally provide that defendants un-
able to pay court costs in advance should
be denied the right to plead not guilty or
to defend themselves in court. Such a law
would make the constitutional promise of a
fair trial a worthless thing. Notice, the
right to be heard, and the right to counsel
would under such circumstances amount to
meaningless promises to the poor. In
criminal trials a state can no more dis-
criminate on account of poverty than on
account of religion, race, or color. Plainly
the ability to pay costs in advance bears no
rational relationship to a defendant's guilt
or innocence and could not be used as an
excuse to deprive a defendant of a fair trial. 3
One of the court's more famous decisions in this area was
handed down in 1963.'* In this case, a Florida statute
permitting appointment of counsel for indigents in capital
cases only was stricken down under the Sixth Amendment right
of counsel. The court in incorporating the Sixth Amendment
into the Fourteenth did not specifically hold that the failure
to provide counsel for indigents would be an invidious dis-
crimination against those of low income; however, the effect
of the decision was:
[T]he right of an indigent defendant in a
criminal trial to have the assistance of
counsel is a fundamental right essential to
a fair trial, and petitioner's trial and
conviction without the assistance of counsel
violated the Fourteenth Amendment. 5
The court also noted:
[Although] the right of one charged with
crime to counsel may not be deemed funda-
mental and essential to fair trials in
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
some countries. . . it is in ours. From
the very beginning, our state and national
constitutions and laws have laid great
emphasis on procedural and substantive
safeguards designed to assure fair trials
before impartial tribunals in which every
defendant stands equal before the law.
This noble ideal cannot be realized if the
poor man charged with crime has to face his
accusers without a lawyer to assist him. 6
Since then, the right of counsel has been extended by the
court to cover a number of other stages and types of pro-
ceedings involving low-income persons. 7 in addition, federal
statutory and state constitutional and statutory activity in
this area is not difficult to find. The federal Bail Reform
Act of 1966, for example, is designed to facilitate pre-trial
release for those who could not afford paying for their release.
In addition, the Georgia Constitution [Art. I, Para. 10] provides
that a defendant does not have to pay costs until after final
conviction: "No person shall be compelled to pay costs except
after conviction on final trial."
The Revised Codes of Montana, 1947, Section 93-8625, provide
that a low-income person can sue and defend in any state court
without costs:
Any person may commence and prosecute or
defend an action in any of the courts of
this state who will file an affidavit stat-
ing that he has a good cause of action or
defense, that he is unable to pay the costs,
or procure security to secure the same;
then it is hereby made the duty of the
officers of the courts to issue all writs
and serve the same, and perform all services
in the action, without demanding or receiving
their fees in advance.
This provision was enacted in 1869 and was amended in 1971 to
include defending without costs. ^
A broad constitutional alternative would be an announcement
that no persons should be denied the equal protection of the
laws and the elemental rights of substantive or procedural
due process because of income status. There is a state con-
stitutional precedent for such a provision. As noted by the
U.S. Supreme Court in 1955, the Illinois Constitution of 1818
[Art. VIII, Sec. 12] contained a provision guaranteeing that
every state resident "ought to obtain right and justice
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
freely, and without being obliged to purchase it, completely
and without denial, promptly and without delay, conformably
to the laws [emphasis added] ."9
Such a provision would be a guarantee at the level of fun-
damental law that the system of judicial procedure should
not operate in any of its phases to the detriment of those
who are unable to pay. It would reflect the above-mentioned
1955 court opinion, which said: "There can be no equal
justice where the kind of trial a man gets depends on the
amount of money he has. "10
The New Property and Public Assistance Recipients' Rights
The institution called property guards the
troubled boundary between individual man and
the state. It is not the only guardian; many
other institutions, laws and practices serve as
well. But in a society that chiefly values
material well-being, the power to control a
particular portion of that well-being is the
very foundation of individuality. — Charles A. Reich
A spate of material has been written about a new kind of
property which is replacing to some extent traditional forms
of wealth. Where traditional wealth was held apart as private
property, this new property depends for its existence on a
certain kind of relationship to government. For Charles Reich,
who coined the term in 1964, the new property consists of numerous
forms of wealth which emanate from the state: franchises, sub-
sidies, occupational licenses, government jobs, government
contracts and welfare benefits. This government largess has
grown to the point where "hardly any citizen leads his life
without at least partial dependence on wealth flowing through
the giant government syphon. "H
The same commentator writes that this growth of new property
"is having profound consequences. It affects the underpinnings
of individualism and independence. It influences the workings
of the Bill of Rights. "12
In general, these new forms of property are not protected by
the legal safeguards that traditionally safeguard property
rights. That is, they are nonalienable , are subject to ex-
propriation without compensation and may be burdened with
conditions unrelated to the purpose or function of the par-
ticular item of wealth. 13 Reich argues that it is essential
these forms of government largess be considered a form of
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
property rather than mere privilege. As he puts it: "The
presumption should be that the professional man will keep
his license, and the welfare recipient his pension. These
interests should be vested. "14
If it is true, as one commentator has said, that Reich in-
vokes the term property for new government largess "not out
of love of labels to be sure, but out of longing to induce
[an] emotive response from the judges," perhaps it might be
of doubtful value to consider some forms of government largess
in terms of property. 15 Perhaps they should be selectively
accorded the status of a right; this is especially the case
if the legal understandings of property remains narrow, short
of some notion of propriety (see Chapter VIII). Perhaps their
guarantee as rights is the only way to immunize "the person
as a sacrosanct object of democratic concern. . . from total
dependence upon the evolving government-business Leviathan."!^
And it is more than just plausible that if certain forms of
government largess were to be accorded the status of rights,
the first such form to be so guaranteed would be the right to
the necessities of life.
What follows is a brief exploration of the type of new
property — the public assistance grant for the necessities of
life and the person with inadequate income who claims it —
with a view to clarifying some of the procedural and sub-
stantive civil liberties issues surrounding access to
governmentally dispensed necessities.
Public Assistance
In very simple terms public welfare policies
involve the acceptance by the society at
large of the responsibility to provide for
the basic needs of persons who are unable,
for one reason or another to provide for
themselves . 17
This idea that the public wealth ought to provide the necessities
of life to those in need has long been a part of the social customs
and law of most societies. It has been a part of Anglo-American
common law for several centuries. 18 Blackstone, in his Commentaries ,
argued that it was the law which furnished what he termed a right
to the necessities of life:
The law not only regards life and member,
and protects every man in the enjoyment of
them, but also furnishes him with everything
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
necessary for their support. For there is
no man so indigent or wretched, but he may
demand a supply sufficient for all the
necessities of life from the more opulent
part of the community, by means of the
several statutes enacted for the relief of
the poor. . . . [emphasis added]. 19
Blackstone also called the provision of the necessities of
life "humane" and "dictated by the principles of society. "20
The efforts at various forms of public assistance in England
and the United States have been greatly influenced by the
sixteenth century Parliamentary recognition of the responsibility
of the local governments to raise funds for poor relief and the
later Elizabethan Poor Law which established the manner in which
the governmental responsibility was to be carried out.
Varying programs and degrees of commitment have characterized
the American effort to provide public assistance. The early
programs were generally the work of town and county governments;
the Northwest Territory statutes of 1790 announced the principle
of local responsibility for poor relief. Most of the state
enactments during this time were delegations of responsibility
for public assistance to local units of government. This
reliance on local government continually declined until the
mid-1930s, when the federal government moved into the field
on the heels of a national economic catastrophe. During this
time, state involvement in public assistance efforts had
steadily increased. 21 in fact, Montana was one of the first
states to enact legislation to aid the elderly in 1923,
With the passage of the Social Security Act of 1935, the
pattern of the existing state programs was reflected in
federal law. This act set federally enforced minimum
standards for public assistance programs. Although the
relative size of federal expenditure in the area increased
significantly, the main responsibility for public assistance
still remained with the states. States still possessed a
good deal of discretion in setting up and operating such
programs . ^2
In recent years, attention has been focused on this level of
state discretion and two main rights areas: the standards
of procedural fairness which should be followed in cases in-
volving recipients and the substantive right (or, at least,
the presumption of entitlement) possessed by those who meet
the statutory requirements of the Social Security Act.
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
Due Process in the Administration of Public Assistance
In 1965, Charles Reich wrote:
[T]he time has come for lawyers to take a
major interest in social welfare, and for
the welfare profession to concern itself
with the rapidly growing relevance of law. . . .
These issues [of individual rights and social
welfare] will lie quiet no longer; they urgently
demand our attention. 23
In the same year, Reich's words turned out to be prophetic and
what one commentator has called an era of struggle over the
legal rights of public assistance recipients was begun. 24
Reich listed a number of rights areas which have since become
staple fare in constitutional law. For example, some welfare
regulations were drawn in a way that imposed a standard of
moral behavior on recipients. In order to enforce the most
famous of these, the "substitute father rule," midnight raids
were made to determine whether there was a man in the home of
a recipient mother. If so, she was refused further aid. In
other states, various regulations operated to the same point.
Some states excluded children whose mother worked fulltime,
even though her salary was less than the state Aid to Families
with Dependent Children level; another state excluded children
of mothers who were able to work, but could not find jobs.
Other states required the mother to submit to a psychiatric
examination at the demand of the welfare caseworker or lose
aid; excluded children who were suspended from school; ex-
cluded children who went to college instead of vocational
school; excluded children whose mother was under 18 or re-
fused to file criminal support charges against the deserting
father, and on and on. 25
In 1968, the U.S. Supreme Court ruled Alabama's "substitute
father" rule unconstitutional. The court held that a state
could not deny welfare benefits to a child on the grounds that
his mother was engaged in extra-marital sexual relations. The
court said that under the Social Security Act, "destitute
children who are legally fatherless cannot be flatly denied
federally funded assistance on the transparent fiction that
they have a substitute father. "26
The court also noted that insofar as Alabama's
substitute father regulation (which has no
relation to the need of the dependent child)
is based on the State's asserted interest in
discouraging illicit sexual behavior and
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
illegitimacy it plainly conflicts with federal
law and practice. 27
The profound impact of this type of ruling can be seen in the
fact that this one decision — affecting persons in nineteen
states and the District of Columbia — opened the welfare rolls
to more than half a million children previously excluded.
In addition, the court's reasoning could have further impact.
In attempting to clarify the definition of dependent children,
the court noted that "Alabama has breached its federally im-
posed obligation to furnish 'aid to families with dependent
children. . .with reasonable promptness to all eligible
individuals' [emphasis added]. "28 This indicates that the
federal definitions in the Social Security Act do not
merely operate to set limits on who can receive aid; rather,
the states must include everyone whom Congress intended to
include within the federal definitions and conditions. ° With
such a broad interpretation of the federal act, there is a
good chance that all narrow rules found in state programs may
violate the Social Security Act.-^^
Another area of welfare rights activity centers around the
problem of recipient dependency on agency discretion. While
a recipient may fall within the legally defined categories
for receipt of aid, he may still be denied aid in various
ways. Perhaps the biggest advance in this area came about as i
result of two companion cases decided by the U.S. Supreme
Court in 1970. These two cases, Goldberg v. Kelly and Wheeler
v. Montgomery, contain compelling arguments on the due process
rights of recipients in the face of administrative arbitrari-
ness. -^1
In the two cases, the court squarely faced the question of
whether termination of public assistance benefits required a
prior hearing. The procedure the agency followed permitted
a hearing after termination. The court, upholding the lower
court decision, stated that since public assistance benefits
provide the "means to obtain food, clothing, housing, and
medical care," the termination of aid "pending resolution of
a controversy over eligibility may deprive an eligible
recipient of the very means by which to live while he waits."
The court continued:
Since he [the recipient] lacks independent
resources, his situation becomes immediately
desperate. This need to concentrate upon
finding the means for daily subsistence, in
turn, adversely affects his ability to seek
redress from the welfare bureaucracy.
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
Moreover, important governmental interests
are promoted by affording recipients a pre-
termination evidentiary hearing. From its
founding the Nation's basic commitment has
been to foster the dignity and well-being
of all persons within its borders. We have
come to recognize that forces not within the
control of the poor contribute to their
poverty. This perception, against the
background of our traditions, has signifi-
cantly influenced the development of the
contemporary public assistance system.
Welfare, by meeting the basic demands of
subsistence, can help bring within the
reach of the poor the same opportunities
that are available to others to participate
meaningfully in the life of the community.
At the same time, welfare guards against
the societal malaise that may flow from a
widespread sense of unjustified frustration
and insecurity. Public assistance, then,
is not mere charity, but a means to "promote
the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity."
The same governmental interests that counsel
the provision of welfare, counsel as well its
uninterrupted provision to those eligible to
receive it; pre-termination evidentiary
hearings are indispensable to that end. -^2
The respondent in the case did not contest the rights issues
but argued that not granting a pre-trial evidentiary hearing
conserved fiscal and administrative resources. The court
replied that such interests did not override the primary
concern of public assistance programs: to get benefits to all
those statutorily entitled. ^^ Justice Black's dissent, and those
of Chief Justice Burger and Justice Stewart in the companion
case, sharpen some of the underlying contentions . ^4
Another concern in the area of recipient rights is the state
and local character of the public assistance system. One aspect
of tnis quality of the program was the residency requirement.
Most states had such requirements when the court ruled in
Shapiro v. Thompson that such requirements were a denial of
the Fourteenth Amendment's equal protection of the laws clause
and the due process clause of the Fifth Amendment. ^5 Again,
in this case, the opinions of the court provide interesting
background discussion of issues of public assistance rights.
In general, there has been a move to preclude public assistance
agencies from denying benefits to those entitled to them by
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requiring the agencies to follow some form of due process prior
to such termination. Courts also have gradually revised the
long-dormant substantive aspect of the due process protection
and afforded it to those who are arbitrarily denied the
necessities of life. Substantive due process — traditionally
used by courts to protect railroads, corporations and other
business interests by invalidating state laws guaranteeing
the health, safety and welfare of citizens — has been turned
around from its early twentieth century application. It now
protects personal rights as opposed to corporate rights; one
of the liberties it protects is the freedom from arbitrary
denial of the rights attendant to "a specialized type of
property presenting distinct problems in our economic system:"
the necessities of life. -^^ A possible constitutional alter-
native on this point would state that persons are entitled to
public assistance as provided by law and that their arbitrary
termination without prior evidentiary hearing is a denial of
due process of law.
The Substantive Right to the Necessities of Life
One commentator has written that the early public assistance
laws
reflected the sentiment that poverty is a
personal disgrace caused by individual
laziness, moral weakness, or other indi-
vidual or personal shortcomings. This
underlying notion still influences some
welfare provisions and the outlook of
many toward public welfare. -^^
Increasingly in recent years, this attitude has been changing
to the point where it is written:
No unflattering portrait of the human psyche —
as beset with envy and spite — is necessary to
the belief that relative deprivation can be a
great evil, especially where the inequalities
are neither marginal in significance nor
randomly distributed. One need believe only
that a socially assigned position of notice-
ably inferior command over resources and in-
fluence in gravely prejudicial to one's
chances for a decent life. . . .38
That is, the recipient no longer is viewed as the evil; rather,
the condition of life to which an affluent society can assign
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
certain people — relative disparity--is looked on as the evil.
In deciding the above-discussed Goldberg case, the court
majority said:
It may be realistic today to regard welfare
entitlements as more like "property" than
a "gratuity." Much of the existing wealth
in this country takes the form of rights
that do not fall within traditional common-
law concepts of property. It has been
aptly noted that "[s]ociety today is built
around entitlement. The automobile dealer
has his franchise, the doctor and lawyer
their professional licenses, the worker his
union membership, contract, and pension
rights, the executive his contract and
stock options; all are devices to aid security
and independence. Many of the most important
of these entitlements now flow from govern-
ment: subsidies to farmers and businessmen,
routes for airlines and channels for tele-
vision stations; long term contracts for
defense, space, and education; social
security pensions for individuals. Such
sources of security, whether private or
public, are no longer regarded as luxuries
or gratuities; to the recipients they are
essentials, fully deserved, and in no sense
a form of charity. It is only the poor whose
entitlements, although recognized by public
policy, have not been effectively enforced. "40
39
This is only one example of how the Supreme Court has joined
the current despair over the older notions of property and,
as one commentator has noted, "has begun to structure [property's]
new matrix of rights not upon the old formula but upon the dignity
of the human person [emphasis added]. "^1 This line of reasoning
suggests a substantive right to the necessities of life. As
noted earlier, the new forms of property do not lend themselves
to protection if they are considered as gratuity or charity.
Reich, while stating that growth of governmental power in the
dispensing of property must be kept within bounds, adds:
[T] here must be a zone of privacy for each
individual beyond which neither government
nor private power can push--a hiding place
from the all-pervasive system of regulation
and control. Finally, it must be recognized
that we are becoming a society based upon
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
relationship and status--status deriving
primarily from sources of livelihood.
Status is so closely linked to personality
that destruction of one may well destroy the
other. Status must therefore be surrounded
with the kind of safeguards once reserved
for personality.
Eventually those forms of largess which are
closely linked to status must be deemed to
be held as of right. . . .The concept of
right is most urgently needed with respect
to benefits like unemployment compensation,
public assistance, and old age insurance.
These benefits are based upon a recognition
that misfortune and deprivation are often
caused by forces far beyond the control of
the individual, such as technological change,
variations in demand for goods, depressions,
or wars. The aim of these benefits is to
preserve the self-sufficiency of the individual,
to rehabilitate him where necessary, and to
allow him to be a valuable member of a family
and a community. . . .'^2
The Bill of Rights Committee of the 1970 Illinois Constitutional
Convention considered a statement related to Reich's point.
The committee, on a split vote, recommended the following pro-
vision: "It shall be the public policy of the state that all
persons shall have adequate nourishment, housing, medical care
and other needs of human life and dignity. "^3 The committee's
rationale in proposing the provision is brief and somewhat
curious :
This provision is expressive of the basic needs
and aspirations of the people of the state. It
creates no enforceable obligation or private
right, and it imposes no limitation on the
powers of government. It is purely hortatory,
a "constitutional sermon." Like a preamble,
such a provision is not an operative part of
the Constitution. It is included to serve a
teaching purpose, to state an ideal or principle
to guide the conduct of government and individual
citizens. 44
The reasoning is curious because in the above-cited Goldberg
decision, the court based its decision on a clause in the
Preamble to the U.S. Constitution.'^^ This would indicate
that such a provision might not be inoperative.
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
In any case, the committee continued that there apparently was
no precedent for such a provision and that the minority opposing
it believed the state's only obligation was to provide oppor-
tunities for attaining basic needs, not the needs themselves.
Another type of proposal for consideration is one which does
create enforceable personal rights and obligations on the
part of government, or at least sets a direction for government
in a manner similar to other constitutional provisions. One
example of such an alternative is a statement that health and
other necessities are basic human rights that should be
guaranteed to all citizens of the state; a statement also could
be added binding the government to enact laws enabling citizens
to secure such services without regard to distinctions such
as the ability to pay. Another possibility would be a state-
ment guaranteeing to all citizens the right to the necessities
of life. Such a provision could announce that access to the
necessities is a matter of public policy, could mandate the
legislature to enact laws to this end and/or could stipulate
privately enforceable rights to facilitate obtaining such
assistance.
Whatever may be said of the substantive right to the necessities
of life, it is clear that such payments as public assistance
benefits no longer can be considered mere privileges. The
U.S. Supreme Court said as much in Goldberg v. Kelly:
[Public assistance] benefits are a matter of
statutory entitlement for persons qualified
to receive them. Their termination involves
state action that adjudicates important rights .
The constitutional challenge cannot be answered
by an argument that public assistance benefits
are a privilege and not a right [emphasis
added] .46
A constitutional alternative that speaks to this point would
require the state to administer public assistance programs
to the full extent of statutory entitlement.
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
POPULATION CONTROL AND THE BILL OF RIGHTS
Infinite Growth on a Finite Planet
The cover of a now-famous book, first printed in 1968, bore
the following words: "while you are reading these words four
people will have died from starvation. Most of them children."
Also printed on that cover is the statement, "the population
bomb keeps ticking." As a result of the work of Dr. Paul
Ehrlich and others, the present problem of over-population
has been given more of the attention it demands. ^^ It has
been written that "nearly every major economic or social
problem today . . . can be shown to have a causal link with
the unprecedented increase in human numbers which has gone
unchecked since the Industrial Revolution."'*^
Until recently, it was casually assumed that the core of the
problem of over-population could be credited to the developing
nations--Africa, South T^erica, Latin America and Asia. How-
ever, the population problem is also of magnitude in the
United States. It is true that
although the contribution of the developing regions
to total world population growth significantly ex-
ceeds that of the developed regions, because of
vastly greater rates of production and consiomption
the United States and other nations can be viewed as
at least equally culpable contributors to problems
associated with the population explosion. ^^
Increasingly, pressure has been brought at all levels of govern-
ment in an effort to deal with the steady growth of population
on a finite planet with finite resources. This essay outlines
the legal approach to this biological imperative and concentrates
on its interaction with various conceptions of personal rights.
The dimensions of the problem perhaps can best be seen in the
following brief overview. The Earth, now and for many years
to come the only source of men's needs, is a finite planet.
That is, its capacities to satisfy the demands of an increasing
population have a boundary. Since no nation, developed or
developing, has stopped growing--has a zero growth rate--all
nations are continually advancing toward (and some may have
crossed over) that boundary. In other words, population
growth, at whatever rate, is an infinite proposition on a
finite planet. It should be noted that trends in a growth
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
rate cannot be confused with a growth rate of absolute zero.
For example, during the Depression, the growth rate in the
United States fell to one-half of 1 percent. But even with
this low growth rate, the population kept growing; it has
not stopped growing. The United States growth rate is
currently at the seemingly low rate of 1 percent.
Of course, the problem in the developing countries is much
worse, and may even be out of hand. Changes in the social
structure in the United States, which helped to reduce (not
eliminate) the growth rate, have not occurred in these
nations. Their birth rate remains high. At the same time,
the export of Western technology — especially antibiotics,
insecticides, low cost sanitation, etc. — has increased the
average life expectancy in these nations and thereby has
reduced the mortality rate. It is this interplay between
birth rate and death rate which is capable of producing the
phenomenal growth in population which the developing nations
are experiencing. Only if the birth rate and the death rate
were equal would there be no growth.
Throughout most of history, population growth was very slow.
The birth rate--the fertility rate — was fairly high but the
new growth in population was checked by the incidence of war,
famine and disease. That is, periodically high rates of
mortality kept the absolute size of the population in check.
High mortality rates no longer are acceptable in the public
mind as solutions for population control. Given the current
growth rates in population and the agreement that the mortality
rate should not be increased by one meems or another, the
heart of the problem seems to lie in the control of the birth
rate. 50
If fertility rate is to be concentrated on as the core of the
problem, it should be rembered that even a slight growth rate —
that is, even a birth rate that is only slightly greater than
the mortality rate--can produce in a very short time pheon-
menal changes in the absolute size of a population. For
example, the current growth rate of the United States, cited
above as 1 percent, only seems low. When this growth rate
is applied to the current United States population of 200
million, only slightly more than thirty years will be required
to produce another 100 million people. In 1915, the popula-
tion of the United States reached 100 million; the nation
had fifty-five years to accommodate its next 100 million. At
the current growth rate, only thirty years is available to
accommodate the third 100 million. Adding to this the current
unyielding problems in cities with overcrowding, solid waste
disposal, air and water pollution, traffic congestion, etc.,
the prospect becomes alarming. 51
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
One other consideration deserves mention. It has often been
said that the United States, with its high standard of
living, has only about 7 percent of the world's population,
yet consumes in excess of 50 percent of the world's resources.
The primary use of the resources is concentrated among the
white middle class sector of the population. It is among this
burgeoning class of highly consumptive individuals that the
control of population growth is most pressing. Admittedly,
the growth rate in this sector of the population is slightly
lower than that of the lower income and the non-white sectors;
however, that is not the point. The more affluent groups
consume more than the lower income groups — cars, TV sets,
applicance and a stunning array of gadgets. Thus, it requires
a greater portion of the finite resources of the planet to
sustain this group of persons who constitute history's most
materially comfortable group. Ehrlich, speaking of this
highly consumptive class, has written in strong terms:
[The middle class] produced the bulk of our demand
for power, both by direct use and by creating the
power needs of industry (it takes power to build
cars and appliances as well as run them) . Smog-
producing coal-fired plants and potentially deadly
nuclear power plants are not being built helter-
skelter to meet the power demands of ghettos. We
are not eating up the world's supplies of petroleum
so that the poor can richochet around the world in
jet aircraft. We do not loot the underdeveloped
world of its protein to feed farm animals so that
people living in poverty can enjoy steaks, pork
chops, and chicken. ^2
As another commentator has written:
[Fjocusing [a population control program] on the
poor may be an all too convenient excuse for ignoring
the broader and more difficult task of reducing
the number of children born to the far larger class
of more affluent Americans. ^3
Perhaps it is one of the central ironies of history that the
attainment of a degree of material comfort unknown in previous
times--except to select persons at the top of society--should
produce a series of dilemmas, likewise without precedent.
Leaving may threads untied, it is certain that one of these
dilemmas is the tension between the proposals for solution
of the problem of too large a population overburdening
available resources and the concept of personal liberty. For,
as one commentator has written: "It has become almost axioma-
tic that population growth in the United States will someday
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
have to stop."^^ The problem that any growth rate is an in-
finite proposition on a finite planet means that the critical
issue in population control "is not whether the number of
human beings shall be limited, but how the limitation should
occur. " 55
Compulsory Limitation of Population Size;
Some Potential Rights Issues
Assume the government were to institute a program of compul-
sory limitation of family size. Certainly one of the major
potential obstacles to such a program would be the concept
of individual liberty contained in the bill of rights. For
example, the free exercise of religion clause might be in-
volved to protect those whose religion proscribes the use of
birth control devices. A line of U.S. Supreme Court cases
on this point indicates that although the state cannot regu-
late a person's beliefs, it can regulate actions which are
believed to be detrimental to the interests of the society
at large without infringing on the freedom of religion. That
is precisely the point made by the court regarding the reli-
gious practice of polygamy by members of the Mormon Church. 56
The practice was outlawed by the court even though the Mormons
claimed it to be a part of their religion. This decision is
reflected in the wording of Montana's free exercise of reli-
gion clause [Art. Ill, Sec. 4], which goes so far as to term
the practice of polygamy an act of "licentiousness." A Mon-
tana Supreme Court case also indicates the potential for
state regulation of religious practice. The court ruled
that the peyote cult--a practice long a part of the religion
of certain Indian tribes — was illegal and was not protected
by the free exercise of religion clause. 57
The bar of the use of peyote in this case has since been
overturned. But the rationale of that case and of others
still standing--based on the not always clear distinction be-
tween religious belief and religious behavior--has been
extended in a way that does not undermine early tests of
this sort or those used to rule against the Mormon practice.
The most recent doctrine relating to these matters is that
in order to regulate certain behavior, the state must show
a compelling interest in the behavior and also must show that
the behavior could not be regulated without infringing the
right to the free exercise of religion. 58
Without entering the debate too far, it can be seen that the
free exercise of religion clause would not necessarily limit
the capacity of the state to compel the limitation of family
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
size. Perhaps courts would rule that an infringement of
civil liberties would be the result of an unlimited growth
in population and that a slight infringement at present
would eliminate the need for harsher measures in the future.
Another possible conflict with a governmental program for
compulsory family limitation is the recently delineated
right of marital privacy. The case Griswold v. Connecticut,
previously discussed in connection with the broad right of
privacy and the doctrine of unenumerated rights , announced
a right of marital privacy even though one is not explicit
in the federal Bill of Rights. ^° In his concurring opinion
in this case. Justice Goldberg announced that the right
included the right "to marry, establish a home, and bring
up children. "^^
Although there is no indication in the language of the court
decision that such a right extends to the right to unlimited
procreation, it is arguable that it does. On the other hand,
one does not, according to the cases mentioned above, have
the right to decide how many spouses he or she may have. It
does not seem too big a step for the legislature to control
the number of children as it does the number of spouses. In
addition, the Griswold opinion seems to deal more with the
question of unnecessary trespass into the intimate and per-
sonal aspects of the marital relationship. Does the same
rationale apply to state regulations of martal practices which
have an arguably profound impact on society as a whole? The
question does not have an easy answer. The final question
seems to be "is there a constitutionally protected right to
unlimited procreation or, alternatively, can the state regu-
late by statute the size of the family?"
Two U.S. Supreme Court cases deal directly with compulsory
birth control statues, and they indicate that compulsory con-
trol of fertility is constitutional, but only if it meets
the requirements of equal protection of the laws.^-^ One of
these, Buck v. Bell, affirmed a state law which provided for
the compulsory sterilization of persons afflicted with here-
ditary insanity or imbecility. In another. Skinner v.
Oklahoma, the court considered a statute which provided for
the compulsory sterilization of anyone who was a habitual
criminal. The statute defined the habitual criminal as one
who was convicted two or more times for felonies involving
"moral turpitude." Since the crimes of embezzlement and tax
evasion were excluded from the definition of habitual criminals,
a person with two larceny convictions could be sterilized,
while one with two embezzlement convictions could not be. The
Supreme Court ruled that such a statute was a denial
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
of the equal protection of the laws . The point seems to be
that a compulsory sterilization statute cannot single out
certain persons while excluding others.
These two cases, read together, indicate that the compulsory
regulation of fertility may stand the tests of constitution-
ality. That is, it is conceivable that a legitimate state
effort to compel the limitation of family size would not un-
duly, in the court's view, infringe basic rights. Of course,
this does not deal with the question of the desirability or
the necessity of such compulsion. Nor does it deal with a
range of options involving voluntary methods of family size
restriction.
Voluntary Limitation of Population Size
There are several alternatives to compulsory family-size re-
striction. These include liberalizing regulations on the
sale and use of contraceptives, clarifying the legality of
sterilization operations and repealing restrictions on abor-
tions. Each of these alternatives has its own peculiar set
of problems , and only one of them — abortion — has become a
constitutional question of magnitude.
In the early 1800s in the United States, there were no statutory
prohibitions of abortions before quickening. At that time,
nearly all surgical operations carried with them the risk of
fatal infection. Accordingly, the country's first abortion
statutes were enacted, their justification being a desire
to protect the pregnant woman from hazardous surgery. In
1858, a state court in New Jersey pointed out that the statute
prohibiting abortion in New Jersey was not designed to halt
abortions but to protect the life and health of the mother
against the then high possibility of fatal surgery. 62 At
least in terms of the early statutory justifications, the si-
tuation has changed. With many authors writing of the rela-
tive safety of hospital abortions, the old rationale has been
lost. This is not to say, however, that the debate has not
continued; for, without a doubt, "the present controversy
over abortion reform is one of the most significant issues
in the United States today. "^3
The typical early abortion statute permitted abortion in only
one situation — to save the life of the mother. Such statutes
did not permit abortion where permanent or serious injury to
the mother was likely, where there was a good chance that a
physically or mentally defective child could result, where
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
the pregnancy was the result of incest or rape, where the
woman was medically unable to use contraceptives or where a
child was unwanted. Restrictive abortion laws have been
challenged on the grounds that their alleged purpose in
safeguarding a woman's life is not their effect. Given the
thriving market in illegal abortions, a situation in which
only the wealthy woman can get a reasonably safe abortion,
they are said to drive women in the excluded categories
into a more dangerous situation than if they were permitted
a hospital abortion. ^4
Although there is a statutory and judicial trend away from
such laws, the majority of states still punish as felonies
all abortions not performed for the preservation of the
woman's life. Since 1967, several states have passed laws,
stimulated by mounting public opinion, which permit abor-
tions when necessary to protect the life and health of the
mother, when there is suJostantial chance of a defective
baby, or if the pregnane^' was the result of rape or incest.
Even with these refoinns, however, the public agitation for
complete abolition of the statutes has not subsided. For
example, one commentator has suggested that the current
status of such therapeutic abortion reforms bears a close
resemblance to the effect of Prohibition laws, which only
decreased the quality and ready availability of liquor
without abolishing it. In other words, it is alleged that
such abortion laws do not and cannot stop abortions, but
can only reduce the quality of those available; the illicit
market in abortions still thrives. ^^
In addition, it is argued that such statutes force women
who do not meet the criteria for legal abortion and who are
desparate enough to risk their lives to go underground, and
thus is a denial of the equal protection of the laws. That
is, the effect of the laws is to force lower income women
into a situation which women of status in the community will
never have to face. As a result of the estimated 1.5 million
illegal abortions performed annually in the United States,
there were somewhere in the neighborhood of five to ten
thousand deaths, mostly among the poor.
The successes or failures of the therapeutic abortion acts
notwithstanding, the entire issue has been taken to the
courts where the core of the issue — whether a pregnant
woman, in consultation with her physician, ought to be
allowed to decide for herself when a pregnancy ought to be
terminated--is being decided. The other two grounds of
judicial attack on the laws, overbreadth and vagueness.
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
will not be discussed here because they deal less with straight-
forward constitutional questions than the mechanics of the
particular statutes.
The famous Brandeis dissent in a 1928 wiretap case where he
pointed to a "right to be let alone" and a recent case
recognizing "the right to be free, except in very limited
circumstances, from unwanted governmental instrusions into
one's privacy," are the basic constitutional directives setting
the broad base for the constitutional right to an abortion. 66
Proponents of the right also argue that the reasoning which
yields the right of marital privacy, as articulated in
Griswold v. Connecticut, gives a woman the right to decide
if she should have a child. ^'^
Supplemental support for this position can be found in the
recent case which held the District of Columbia abortion law
void for vagueness. In this case, the court also held that
the area of protected privacy "may well include the right to
remove an unwanted child at least in the early stages of
pregnancy." The court also encouraged the U.S. Congress to
re-examine the abortion statute in light of current medical
and legal conditions, and noted that it is a legal imperative
that abortion services be available to ensure that all seg-
ments of the population, rich and poor, have equal access. °°
The California Supreme Court also handed down a ruling that
the right of privacy covers the right of a woman to an abor-
tion. Citing Griswold, the court ruled that to have protec-
tion, the right need not be enumerated in the declaration of
rights. In doing so, the court noted that several other
rights — the right to vote., ^9 the right to travel, ^0 and the
right to marry and procreate '^--are examples of unalienable,
protected rights not specifically enumerated in the consti-
tution. 7 2
Other examples of court decisions declaring abortion statutes
unconstitutional should be noted. The Wisconsin statute was
held unconstitutional on the grounds that a woman has a
private choice of whether to bear an unquickened fetus. '^
Georgia's Therapeutic Abortion Law was declared unconstitu-
tional in part. In holding that the right of privacy in-
cludes the right to terminate an unwanted pregnancy , the
court noted that the right is not unlimited; for example, the
state could legitimately require that a decision to terminate
a pregnancy be made only after counseling or the consent of
a physician.'^ Finally, a Texas court held tha-c the right
of freedom of choice in abortions is a fundamental right. '^
The U.S. Supreme Court has said that such a decision by a
state court-- as to whether any right is fundamental — could
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
not be based on a judge's private or personal notion but must
be the result of a look at the traditions and collective
conscience of the society to determine whether the principle
is sufficiently rooted to be declared fundamental. 7 6
That the above cases are not the final word in the matter is
indicated by a Louisiana decision which held constitutional
a statute which indirectly permits an abortion only to save
a mother's life. In this case, the court held that an abor-
tion is, genetically and biologically, the destruction of
life. 77
A host of other arguments are offered in general to deny and
support the existence of a constitutional right of abortion.
But the center of the argument, given the inability of
scientific authorities to agree on a definition of life which
includes or excludes the fetus, seems to be the question of
whether the state has a compelling and subordinating interest
in the regulation of abortions and, if such interest exists,
to what extent it can be pursued without infringing individual
rights. This point is made in a Supreme Court ruling which
held even though a governmental purpose is legitimate, it
cannot be pursued in such a way that fundamental personal
interests are undermined when there is an alternative means
to achieve the end. 7 8
In the above-cited Wisconsin case, the defense urged that
the state had a compelling interest in the protection of the
fetus. The court, in holding that a woman had the right to
decide whether to carry a fetus, ruled that such an interest
was insufficient to entail invasion of the right. 79 in other
words, such interest was compelling but not subordinating.
The court also noted that the state had no compelling interest
in using strict abortion laws to discourage pre-marital sexual
relations. 80
According to the previously cited Griswold decision, the state
clearly has no compelling interest in the regulation of the
use of birth control devices and methods. The current limited
understanding of at least one contraceptive device--the intra-
uterine device — makes it impossible to determine whether this
device prevents fertilization or prevents the fertilized ovum
from attaching itself to the uterine wall.^l If the latter
is true, the device is a form of abortion.
In any case, the question arises, as posed by former Supreme
Court Justice Clark:
One of the basic values of [the right to) privacy
is birth control, as evidenced by the Griswold
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
decision. Griswold's act was to prevent formation
of the fetus. This, the Court found, was consti-
tutionally protected. If an individual may prevent
conception, why can he not nullify that conception
when prevention has failed?°2
The depth of this dilemma can be seen in the fact that even
with the best birth control methods available, there still
would be an estimated 220,000 unplanned pregnancies each
year. Of course, those who oppose such reform contend that
the fetus has a constitutional right to be born or, at least,
that the legislature has the authority to grant such a right. 83
To be sure, courts have granted certain rights to the fetus,
such as the right of inheritance and the right of tortious
injury sustained prior to birth. ^^ Based on this precedent,
some argue that a viable fetus is a person and is therefore
entitled to full protection. ^^
This position is supported by at least two lower court deci-
sions. A Connecticut court has held that life begins at
conception. 8^ An Ohio court also has ruled that the fetus
is a person under the Ohio Constitution. ^^ As one writer has
noted, "the conflict, it seems, can only be resolved by the
Supreme Court. "^^
Perhaps this is true, but the Constitutional Convention pre-
sents the opportunity to deal directly with the question of
the right to an abortion, if^ the matter is felt to be of
constitutional import.
Abortion, Montana Law and the Constitutional Convention
The current Montana statute covering abortion is an example
of the type of statutes which prohibit abortion except in
cases when it is necessary to preserve the life of the mother.
The law is found in Sections 94-401 and 94-402 of the Revised
Codes of Montana, 1947:
Every person who provides, supplies, or administers
to any pregnant woman, or procures any such woman
to take any medicine, drug, or substance, or uses
or employs any instrument or other means whatever,
with intent thereby to procure the miscarriage of
such woman, unless the same is necessary to pre-
serve her life, is punishable by imprisonment in
the state prison not less than two nor more than
five years.
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
Every woman who solicits of any person any medicine,
drug, or substance whatever, and takes the same, or
who submits to any operation, or to the use of any
means whatever, with intent thereby to procure a
miscarriage, unless the same is necessary to preserve
her life, is punishable by imprisonment in the state
prison not less than one nor more than five years.
Section 94-401 was enacted as part of the Bannack statutes in
1866. Section 94-402 was added in 1895. The Montana law is
not a therapeutic abortion statute; it does not extend the con-
cept of legal abortion to cover physical and mental injury,
rape or incest or any other attendant circumstances. And since,
as noted above, even the various therapeutic abortion statutes
across the country are experiencing constitutional difficulties,
there is a good chance the Montana statute is unconstitutional.
In any case, a look at this difficult and controversial question
is perhaps in order.
One commentator, noting that the state of Washington legalized
abortion with a favorable vote of 55 percent of those turning
out, suggests that "perhaps other states should submit the
question to the people. "89 one way such a referendum could
be accomplished by the Constitutional Convention would be to
place wording guaranteeing the constitutional right to decide
whether to bear children on the ratification ballot segregated
from the body of the proposed constitution. Such a practice
is not uncommon, having been used in several states which
recently submitted constitutions for ratification; it has
not, however, been used on the abortion question itself. ^^
If the provision is approved, it becomes part of the state's
declaration of rights; if not, it does not affect the passage
or disapproval of the proposed constitution. In any case,
one issue of some national significance receives popular
attention and consideration. Of course, it also could be
argued that the Convention should decide the matter itself.
It any case, the inclusion of a decision either way on the
abortion issue within the main body of the constitution for
ratification, without offering it as a separate choice, could
bar ratification of the entire document. Broader constitu-
tional alternatives not fraught with the hazards of freezing
into fundamental law a definitive stance one way or the
other on the abortion question include: recognition of the
unyielding problems of unchecked population growth; announce-
ment of state public policy to check unlimited population
growth, and a mandate to the legislature to enact legislation
encouraging population limitation.
In conclusion, one commentator has said that a legal solu-
tion to the problem of over-population is not feasible, for
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
several reasons. Such solutions, he says, will meet opposition
by large segments of the population, may run counter to the
concept of individual liberty and may even be adjudged un-
constitutional. Noting that social changes of some magnitude
seem to be the only answer, he writes that only laws which
permit the use of contraceptives and "make the necessary
information and techniques available seem to have any chance
for enactment."^!
On the other hand, another commentator, with whom the former
does not disagree on the need for population control, has
written that the social changes necessary for voluntary
limitation of population may not even be successful. Ad-
mittedly, government could encourage responsible families
to limit their number of children to two or less and could
remove such impediments to family limitation as restrictive
abortion statutes, unclear sterilization laws and various
regulations on the uses of contraceptives. Since "the time
factor is uncertain, the proponents of compulsion are cor-
rect in warning that reliance on voluntary measures is a
gamble." The extent of the gamble can perhaps best be seen
in considering tne fact that even if fertility is controlled
by 1980, it will take nearly to the year 2000 for population
growth to stop. That is, even if persons were limited in
their childbearing to replacing themselves, the population
would continue to grow, although at a declining rate, for a
number of years "because all the world's mothers for the
next 20 years have already been born and the numbers entering
the childbearing ages are rising year by year. "92
Thus, there is a substantial lag between the time when any
form of population. control is instituted and the time when
it eases or at least stabilizes the pressures on resources
by attaining zero population growth. In any case, the deci-
sion whether to rely on voluntary measures or to resort to
some form of compulsion is a most difficult one; the sooner
voluntary measures are taken, the less likely compulsion
will become necessary. ^^
To be sure, any resort to compulsion will draw all branches
of government into an area fraught with seemingly unyielding
contradictions; it would be an essential effort to compro-
mise individual rights with society's need to stop its growth
on a finite planet. This difficulty notwithstanding, it may
be a sad but true fact that "only when this compromise is
found will the individual once again enjoy the environmental
quality which the founders took for granted in their sparsely
populated world . " ^ ^
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CONTEMPORARY CONCERNS AND THE BILL OF RIGHTS
Thonas Malthus wrote in 1798 that "it is difficult to con-
ceive any check to population which does not come under the
description of some species of misery and vice."^^ A
present-day commentator has written:
Everyone who thinks about these matters is grooing
for answers to a problem that no democratic society
has squarely faced before. The root question is
how to reconcile long-run collective interest in
limiting the growth of population with the desires
of those who want to have more than two children.
Uncomfortable choices will be involved if at some
point society decides that it is desireable to
curtail frecuom to reproduce in order to preserve
other freedoms or to preserve valued amenities. ^^
None of the admittedly partial solutions mentioned above meets
pleasure in all quarters of society. However, the increasing
oressures of an unchecked population growth on an already over-
taxed planet threaten to lead the entire human race down a
path whose end is the greatest of disoleasures .
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CHAPTER XI
NOTES
1. Griffin v. Illinois, 351 U.S. 12, 16 (1956).
2. Ibid. , p. 17. Citing Chambers v. Florida, 309 U.S. 227,
241 (1940). See also Yick Wo v. Hopkins, 118 U.S. 356,
369 (1886) .
3. Ibid. , pp. 17-18.
4. Gideon v. Wainwright, 372 U.S. 355 (1963).
5. Ibid. , p. 335.
6. Ibid. , p. 344.
7. See, for example, Miranda v. Arizona, 384 U.S. 436 (1966);
Douglas v. California, 372 U.S. 353 (1963); Mempa v. Rhey,
389 U.S. 128 (1967) .
8. 1971 Laws of Montana, Ch. 71.
9. See also Illinois Const. Art. II, Sec. 19.
10. Griffin v. Illinois, 351 U.S. 12, 19 (1956). For a
further discussion of this point and the right of access
to the courts, see Gary S. Goodpaster, "The Integration
of Equal Protection, Due Process Standards, and the
Indigent's Right of Free Access to the Courts," Iowa Law
Review 56 (1970) : 223.
11. Charles A. Reich, "The New Property," The Yale Law Journal
73 (1964): 737. Cited hereafter as Reich, "New Property."
12. Ibid. , p. 733.
13. Robert Dugan, "Standing, 'The New Property,' and the
Costs of Welfare," Washington Law Review 45 (3 970):
501-502. Cited hereafter as Dugan, "New Property."
14. Reich, "New Property," p. 787.
15. E. F. Roberts, 'A Eulogy for the Old Property," Maine
Lav; Review 20 (1968): 30. Cited hereafter as Roberts,
"Old Property."
16. Ibid. , p. 48.
17. Richard E. Dawson and Virginia Gray, "State Welfare
Policies," Politics in the American States, eds. Herbert
Jacob and Kenneth N. Vines (Boston : Little , Brown and Co.,
1971), p. 435. Cited hereafter as Dawson, "State Welfare
Policies . "
-351-
NOTES
18. Ibid.
19. Sir William Blackstone, Commentaries on the Laws of
England (Portland: Thomas B. Wait and Co., 1807), I: 131.
20. Ibid.
21. Dawson, "State Welfare Policies," pp. 436-438.
22. Ibid. , pp. 439-443.
23. Charles A. Reich, "Individual Rights and Social Welfare:
The Emerging Legal Issues," The Yale Law Journal 74
(1965): 1245.
24. Edward V. Sparer, "The Right to Welfare," The Rights of
Americans, ed . Norman Dor sen (New York: Random House,
1970) , p. 65. Cited hereafter as Sparer, "Welfare
Rights."
25. Ibid. , pp. 67-68.
26. King v. Smith, 392 U.S. 309, 334 (1968).
27. Ibid. , p. 310.
28. Ibid. , p. 333.
29. Sparer, "Welfare Rights," p. 69.
30. Thus far, federal and state courts seem to follow this
reading of the King decision. Ibid., p. 70.
31. Goldberg v. Kelly, 397 U.S. 254 (1970); Wheeler v.
Montgomery, 397 U.S. 280 (1970).
32. Goldberg v. Kelly, 397 U.S. 254, 264-265 (1970).
33. Ibid. , pp. 265-266.
34. Ibid. , p. 271; Wheeler v. Montgomery, 397 U.S. 280 (1970),
p. 282 (Burger, C.J. dissenting) and 285 (Stewart, J.
dissenting) .
35. Shapiro v. Thompson, 394 U.S. 618 (1968).
36. Sniadich v. Family Finance Corp., 395 U.S. 337, 340
(1969) .
37. Dawson, "State Welfare Policies," p. 436.
-352-
NOTES
38. Frank I. Michelman, "On Protecting the Poor Through the
Fourteenth Amendment," Harvard Law Review 83 (1969): 7.
39. On this point, see, e.g. Michael Harrington, The Other
American (New York: MacMillan Co., 1962).
40. Goldberg v. Kelly, 397 U.S. 254, 262 (1970). Quoting
Reich, "Individual Rights," p. 1255.
41. Roberts, 'Old Property," p. 41.
42. Reich, "New Property," p. 785. For a different view on
the feasibility of treating largess as a right, see
Dugan, 'New Property."
43. Illinois, Constitutional Convention of 1970, Ball of
Rights Committee, Synopsis: Proposal No. 1 (Springfield,
1970) , Sec. 25.
44. Ibid.
45. Goldberg v. Kelly, 397 U.S. 254, 265 (1970).
46. Ibid. , p. 262.
47. Dr. Paul Ehrlich, The Population Bomb (New York:
Ballantine Books, 1968) .
48. William M. Chamberlain, "Population Control: The Legal
Approach to a Biological Imperative," California Law
Review 58 (1970): 1414. Cited hereafter as Chamberlain,
"Population Control."
49. Note, "Legal Analysis and Population Control: The Problem
of Coercion," Harvard Law Review 84 (1971): 1866. Cited
hereafter as Note, "Legal Analysis."
50. Chamberlain, "Population Control," pp. 1419-21.
51. Ibid. , p. 1421.
52. Dr. Paul Ehrlich and Richard L. Harriman, Hov; to Be a
Survivor (New York: Ballantine Books, 1971), pp. 21-22,
53. Note, 'Legal Analysis," pp. 1860-61.
54. Ibid. , p. 1865.
-353-
NOTES
55. Chamberlain, "Population Control," p. 1414.
56. Reynolds v. U.S. , 98 U.S. 145 (1878).
57. state v. Big Sheep, 75 Mont. 219, 238, 243 P. 1067 (1926)
58. Sherbert v. Venner , 374 U.S. 398, 406-7 (1963).
59. Griswold v. Connecticut, 381 U.S. 479 (1965).
60. Ibid. , p. 488.
61. Buck V. Bell, 274 U.S. 200 (1927) and Skinner v.
Oklahoma, 316 U.S. 535 (1942).
62. State v. Murphy, 27 N.J.L. 112, 114 (Sup. Ct. 1858) and
L. Lader, Abortion (1966), p. 86. Both cited from Ricky
L. Welborn, "Abortion Laws: A Constitutional Right to
Abortion," North Carolina Law Review 49 (1971): 487.
This essay suggested the general outline of what follows.
Cited hereafter as Welborn, "Constitutional Right."
63. Welborn, "Constitutional Right," p. 102.
64. Note, "Abortion Reform: History, Status and Prognosis,"
Case Western Law Review 21 (1969): 529.
65. Comment, "Abortion Law Reform at a Crossroads," Chicago-
Kent Law Review 4 6 (1969): 102, 107.
66. Olmstead v. U.S. , 277 U.S. 438, 471 (1928) and Stanley
V. Georgia, 394 U.S. 557 (1969), respectively.
67. Griswold v. Connecticut, 381 U.S. 479 (1965).
68. U.S. V. Vuitch, 305 F. Supp . 1032 (D.D.C. 1969).
69. Carrington v. Rash, 380 U.S. 89 (1965).
70. Aptheker v. Secretary of State, 378 U.S. 500 (1964);
Kent V. Dulles, 357 U.S. 116 (1958).
71. Skinner v. Oklahoma, 316 U.S. 535 (1942).
72. People v. Belous, Cal. 2d , 458 P . 2d 194, 80 Cal.
Reporter 354 (1969) .
73. Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970).
-354-
NOTES
74. Doe V. Bolton, F. Supp. , Civ. No. 13676 (N.D.
Ga. July 31, 1970) .
75. Roe V. Wade, 314 F. Supp. 1217 (N.D. Texas 1970).
76. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
7 7 . Rosen v. Louisiana State Board of Medical Examiners,
318 F. Supp. 1217 (E.D. La. 1970).
78. Shelton v. Tucker, 364 U.S. 479 (1960).
79. Babbitz v. McCann, 310 Fed. Supp. 293, 301 (E.D. Wis.
1970) .
80. Ibid.
81. Welborn, "Constitutional Right," p. 499.
82. Clark, "Religion, Morality, and Abortion: ^ Constitutional
Appraisal," Loyola U.L.A. Law Review 2 (1969): 1, 9.
Cited from Ibid. , note 110 at p. 499.
83. R. F. Drinan, "The Inviolability of the Right to Be
Born," Western Reserve Law Review 17 (1965): 465.
84. Welborn, "Constitutional Right," p. 500.
85. Note, Valparaiso University Law Review 3 (1968): 107-9.
86. Katala v. Markiewicz, 26 Conn. Supp. 358, 224 A. 2d 406
(Sup. Ct. 1966) .
87. Williams v. Marion Rapid Transit, Inc., 152 Ohio St.
114, 87 N.E. 2d 334 (1949) .
88. Welborn, "Constitutional Right," p. 500. For example?,
compare Corbey v. Edwards, F. Supp. , Civ. No.
2665 (W.D.N.C. Feb. 1, 1971) , with the Babbitz, Bolton
and Belou cases cited above.
89. Ibid. , p. 502.
90. The 1970 Illinois Constitutional Convention, for example,
followed this practice on several other issues.
91. Clark, "A Constitutional Appraisal," p. 198.
-355-
NOTES
92. Address by L. Day, Dec. 30, 1969. Cited from Chamberlain,
"Population Control," p. 1424. Attaining zero population
growth immediately would require an average of slightly
over one child per couple. Cf. Note, "Legal Analysis,"
p. 1868. Such a situation, it is noted, would have a
considerable social and political impact.
93. Chamberlain, "Population Control," pp. 1442-3.
94. Ibid.
95. Thomas Malthus, First Essay on Population, Reprints
Economic Classics (New York: Augustus M. Kelly, 1965) ,
p. 108. Cited from Mitchell Sikoria, Jr., "Abortion:
An Environmental Convenience or a Constitutional Right,"
Environmental Affairs 1 (1971): 469.
96. Lawrence A. Mayer, "U.S. Population Growth: Wpuld Fewer
Be Better?" The American Population Debate, ed . Daniel
Callahan (Garden City: Doubleday and Company, Inc.,
1971) , p. 18.
-356-
\
CHAPTER XII
CONCLUSION
A final word is perhaps in order. The notion that govern-
ment ought to be limited by law and that civil liberties
ought to be safeguarded is not new or revolutionary in any
sense, nor does the protection of these essentially personal
civil liberties depend upon the form of government; for as
Jefferson stated, a bill of rights is "what the people are
entitled to against every government on earth, general or
particular, and v>?hat no just government should refuse, or
rest on inference. "1 To the same point, it has been noted
that only a tyrannical government infringes the constitu-
tional protection of civil liberties.^
In addition, at least one commentator has stated that there
are no scientific norms or predetermined ansv/ers in respect
to the basic assumptions of v/ritten constitutions, to the
principles that should be incorporated in such documents,
or, even less, to the specific and concrete problems that
need solution.-^ These all are matters for informed opinion
and independent political judgment. What is required is
not strictly legal judgment, either. As the editors of a
compendium of the law of civil and political rights stated,
"the law of political and civil rights is too important a
matter to be left to the lawyers. Solution of the problem
involved requires the combined assistance of all intellec-
tual disciplines."'* Other commentators have made the same
point. Justice Jackson once observed, "the attitude of a
society and of its organized political forces rather than
its legal machinery, is the controlling force in the charac-
ter of free institutions."^
This notion brings one full circle and sheds light on the
current lack of understanding and lack of desire to protect
old (and explore new) liberties of the type reflected in
the federal Bill of Rights and the states' declarations.
Coupling the idea that the political climate of a society is
the prime insurance of liberties vs^ith the lack of contempor-
ary public concern--duly noted by a substantial num.ber of
political scientists, sociologists, editorial writers, etc.--
leaves one with a host of seeminglv unyielding questions
answerable only after considered reflection and judgment,
.'^ucli judgment would no doubt take its cues not only from
tradition, past experience and the recent trends of consti-
tution revision, but also from the informed of^inion of inde-
pendent scholars. Hopefully, the above provides some of
the material necessary for that tyj^e of judgment.
-357-
CONCLUSION
Finally, a word of caution: In all efforts at serious poli-
tical discourse, such as (at least potentially) a constitu-
tional convention, "nothing . . . compromises the understanding
of political issues and their meaningful debate . . . more
seriously than the automatic thought-reactions conditioned by
the beaten paths of ideologies . • . ."^
-358-
CHAPTER XII
FOOTNOTES
1. Thomas Jefferson to James Madison, Dec. 20, 1787. Cited
from Robert Rutland, The Birth of the Bill of Rights
(Chapel Hill: University of North Carolina Press, 1955),
p. 129.
2. Hannah Arendt , On Revolution (New York: Viking Press,
1963) , p. 141. Cited hereafter as Arendt, On Revolution.
3. Paul G. Kauper, "The State Constitution: Its Nature and
Purpose" reprinted in Montana, Constitutional Convention
1971-1972, Montana Constitutional Convention Commission,
A Collection of Readings on State Constitutions, Their
Nature and Purpose, Montana Constitutional Convention S tudy
No. 4 (Helena, 1971) , p. 125. Cited hereafter as Kauper,
"State Constitution."
4. Thomas Emerson, David Haber and Norman Dorsen, Political
and Civil Rights in the United States (Boston: Little,
Brown and Co , , 1967) , p. v.
5. Quoted from H. Frank Way, Jr., Liberty in the Balance
(New York: McGraw-Hill, Inc., 1967), preface.
6. Kauper, "State Constitution," p. 125.
7. Arendt, On Revolution, p. 225.
-359-
-360-
APPENDIX A
MONTANA CONSTITUTION: PREAMBLE AND DECLARATION OF RIGHTS
PREAMBLE
We, the people of Montana, grateful to Almighty God for the
blessings of liberty, in order to secure the advantages of
a state government, do, in accordance with the provisions of
the enabling act of congress , approved the twenty-second of
February, A. D. 1889, ordain and establish this constitution.
ARTICLE III
A DECLARATION OF RIGHTS OF THE PEOPLE OF THE STATE OF MONTANA
Section 1. All political power is vested in and derived from
the people; all government of right originates with the people;
is founded upon their will only, and is instituted solely for
the good of the whole.
Section 2. The people of the state have the sole and exclusive
right of governing themselves, as a free, sovereign, and inde-
pendent 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.
Section 3. All persons are born equally free, and have certain
natural, essential, and inalienable rights, among which may be
reckoned the right of enjoying and defending their lives and
liberties, of acquiring, possessing, and protecting property,
and of seeking and obtaining their safety and happiness in all
lawful ways.
Section 4. The free exercise and enjoyment of religious profes-
sion and worship, without discrimination, shall forever hereafter
be guaranteed, and no person shall be denied any civil or poli-
tical right or privilege on account of his opinions concerning
religion, but the liberty of conscience hereby secured shall not
be construed to dispense with oaths or affirmations, excuse acts
of licentiousness, by bigamous or polygamous marriage, or other-
wise, or justify practices inconsistent with the good order,
peace, or safety of the state, or opposed to the civil authority
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PREAMBLE AND DECLARATION OF RIGHTS
thereof, or of the United States. No person shall be required
to attend any place of worship or support any ministry, reli-
gious sect, or denomination, against his consent; nor shall
any preference be given by law to any religious denomination
or mode of worship.
Section 5. All elections shall be free and open, and no power,
civil or military, shall at any time interfere to prevent the
free exercise of the right of suffrage.
Section 6. Courts of justice shall be open to every person,
and a speedy remedy afforded for every injury of person, prop-
erty, or character; and that right and justice shall be admin-
istered without sale, denial, or delay.
Section 7. The people shall be secure in their persons, papers,
homes, and effects, from unreasonable searches and seizures, and
no warrant to search any place or seize any person or thing shall
issue without describing the place to be searched, or the person
or thing to be seized, nor without probable cause, supported by
oath or affirmation, reduced to writing.
Section 8. Criminal offenses of which justice's courts and
municipal and other courts, inferior to the district courts,
have jurisdiction, shall, in all courts inferior to the district
court, be prosecuted by complaint. All criminal actions in the
district court, except those on appeal, shall be prosecuted by
information, after examination and commitment by a magistrate,
or after leave granted by the court, or shall be prosecuted by
indictment without such examination or commitment, or without
such leave of the court. A grand jury shall consist of seven
persons, of whom five must concur to find an indictment.
A grand jury shall only be drawn and summoned when the district
judge shall, in his discretion, consider it necessary, and shall
so order.
Section 9. Treason against the state shall consist only in levy-
ing war against it, or in adhering to its enemies, giving them
aid and comfort; no person shall be convicted of treason except on
the testimony of two witnesses to the same overt act, or on his
confession in open court; no person shall be attainted of treason
or felony by the legislative assembly; no conviction shall work
corruption of blood or forfeiture of estate; the estates of per-
sons who may destroy their own lives shall descend or vest as in
cases of natural death.
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PREAMBLE AND DECLARATION OF RIGHTS
Section 10 . No law shall be passed impairing the freedom of
speech; every person shall be free to speak, write, or pub-
lish whatever he will on any subject, being responsible for
all abuse of that liberty; and that in all suits and prose-
cutions for libel, the truth thereof may be given in evidence;
and the jury, under the direction of the court, shall deter-
mine the law and the facts.
Section 11. No ex post facto law nor law impairing the ob-
ligation of contracts , or making any irrevocable grant of
special privileges, franchises, or immunities, shall be passed
by the legislative assembly.
Section 12. No person shall be imprisoned for debt except in
the manner prescribed by law, upon refusal to deliver up his
estate for the benefit of his creditors, or in cases of tort,
where there is strong presumption of fraud.
Section 13. The right of any person to keep or bear arms in
defense of his own home, person, and property, or in aid of
the civil power when thereto legally summoned, shall not be
called in question, but nothing herein contained shall be held
to permit the carrying of concealed weapons.
Section 14. Private property shall not be taken or damaged
for public use without just compensation having been first
made to or paid into court for the owner.
Section 15. The use of all water now appropriated, or that
may hereafter be appropriated for sale, rental, distribution,
or other beneficial use, and the right of way over the lands
of others, for all ditches, drains, flumes, canals, and
aqueducts, necessarily used in connection therewith, as well
as the sites for reservoirs necessary for collecting and
storing the same, shall be held to be a public use. Private
roads may be opened in the manner to be prescribed by law,
but in every case the necessity of the road, and the amount
of all damage to be sustained by the opening thereof, shall
be first determined by a jury, and such amount, together with
the expenses of the proceeding, shall be paid by the person
to be benefited.
Section 16. In all criminal prosecutions the accused shall
have the right to appear and defend in person and by counsel;
to demand the nature and cause of the accusation; to meet the
witnesses against him face to face; to have process to compel
the attendance of witnesses in his behalf, and a speedy public
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PREAMBLE AND DECLARATION OF RIGHTS
trial by an impartial jury of the county or district in which
the offense is alleged to have been committed, subject to the
right of the state to have a change of venue for any of the
causes for which the defendant may obtain the same.
Section 17. No person shall be imprisoned for the purpose
of securing his testimony in any criminal proceeding longer
than may be necessary in order to take his deposition. If he
can give security for his appearance at the time of trial, he
shall be discharged upon giving the same; if he cannot give
security, his deposition shall be taken in the manner prescribed
by law, and in the presence of the accused and his counsel,
or without their presence, if they shall fail to attend the
examination after reasonable notice of the time and place
thereof. Any deposition authorized by this section may be
received as evidence on the trial, if the witness shall be
dead or absent from the state.
Section 18. No person shall be compelled to testify against
himself , In a criminal proceeding, nor shall any person be
twice put in jeopardy for the same offense.
Section 19. All persons shall be bailable by sufficient
sureties, except for capital offenses, when the proof is evi-
dent or the presumption great.
Section 20. Excessive bail shall not be required, or ex-
cessive fines imposed, or cruel and unusual punishments in-
flicted.
Section 21. The privilege of the writ of habeas corpus shall
never be suspended, unless, in case of rebellion, or invasion,
the public safety require it.
Section 22. The military shall always be in strict subordina-
tion to the civil power; no soldier shall in time of peace be
quartered in any house without the consent of the owner, nor
in time of war, except in the manner prescribed by law.
Section 23. The right of trial by jury shall be secured to
all , and remain inviolate, but in all civil cases and in all
criminal cases not amounting to a felony, upon default of ap-
pearance, or by consent of the parties expressed in such man-
ner as the law may prescribe, a trial by jury may be waived,
or a trial had by any less number of jurors than the number
propovided by law. A jury in a justice's court, both in civil
cases and in cases of criminal misdemeanor, shall consist of
not more than six persons. In all civil actions and in all
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PREAMBLE AND DECLARATION OF RIGHTS
criminal cases not amounting to felony, two-thirds in number
of the jury may render a verdict, and such verdict so rendered
shall have the same force and effect as if all such jury con-
curred therein.
Section 24. Laws for the punishment of crime shall be founded
on the principles of reformation and prevention, but this shall
not affect the power of the legislative assembly to provide for
punishing offenses by death.
Section 25. Aliens and denizens shall have the same right as
citizens to acquire, purchase, possess, enjoy, convey, trans-
mit, and inherit mines and mining property, and milling, re-
duction, concentrating, and other works, and real property
necessary for or connected with the business of mining and
treating ores and minerals: provided, that nothing herein con-
tained shall be construed to infringe upon the authority of
the United States to provide for the sale or disposition of its
mineral and other public lands.
Section 26. The people shall have the right peaceably to as-
semble for the common good, and to apply to those invested with
the powers of government for redress of grievances by petition
or remonstrance.
Section 27. No person shall be deprived of life, liberty, or
property without due process of law.
Section 28. There shall never be in this state either slavery
or involuntary servitude, except as a punishment for crime,
whereof the party shall have been duly convicted.
Section 29. The provisions of this constitution are mandatory
and prohibitory, unless by express words they are declared to
be otherwise.
Section 30. The enumeration in this constitution of certain
rights shall not be construed to deny, impair, or disparage
others retained by the people.
Section 31. No armed person or persons or armed body of men
shall be brought into this state for the preservation of the
peace, or the suppression of domestic violence, except upon
the application of the legislative assembly, or of the gover-
nor when the legislative assembly cannot be convened.
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PREAMBLE AND DECLAFIATION OF RIGHTS
ARTICLE IV
DISTRIBUTION OF POWERS
Section 1. The powers of the government of this state are
divided into three distinct departments: The legislative,
executive, and judicial, and no person or collection of
persons charged with the exercise of powers properly be-
longing to one of these departments shall exercise any
powers properly belonging to either of the others, except
as in this constitution expressly directed or permitted.
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APPENDIX B
18H4 MON'l'ANA Ct)NS'r ri'll'l' ION : P Ul'lAMHI ,!■: AND DlX'l .AUA'I' I ON Ol' KUllI'lV
PREAMBLE
The object of the institution, maintenance, and administration
of government, is to secure the existence of the body-politic,
to protect it, and to furnish the individuals who compose it,
with the power of enjoying in safety and tranquility their nat-
ural rights and the blessings of life; and whenever these great
objects are not obtained, the people have a right to alter or
change their form of government, and to take measures necessary
for their safety, prosperity, and happiness.
The body politic is formed by a voluntary association of indi-
viduals; it is a social compact by which the whole people cov-
enant with each citizen and each citizen with the whole people,
that all should be governed by certain laws for the common
good.
It is the duty of the people, therefore, in framing a constitu-
tion of government, to provide for an equitable mode of making
laws, as well for an impartial interpretation and a faithful
execution of them, that every man may at all times find his
safety in them. We, therefore, the people of Montana, acknow-
ledging with grateful hearts the goodness of the Great Legis-
lator of the Universe, in affording us, in the course of His
Providence, an opportunity, deliberately and peaceably, without
fraud, violence or intimidation, of entering into an original,
explicit, and solemn compact with each other, and of forming
a constitution of civil government for ourselves and our posterity;
and devoutly imploring His direction in so grand and interesting
a design, do agree upon, ordain, and establish the following
declaration of rights add form of government as the Constitution
of the State of Montana.
ARTICLE 1
A DECLARATION OF THE RIGHTS OF THE PEOPLE OF THE STATE OF MONTANA
In order to assert our rights, acknowledge our duties, and pro-
claim the principles upon which our government is founded, we
declare :
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1884 MONTANA CONSTITUTION: PREAMBLE AND DECLARATION OF RIGHTS
Section 1. That all political power is vested in and derived
from the people; that all government, of right, originates
from the people, is founded upon their will only, and is in-
stituted solely for the good of the whole.
Section 2. 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 Consti-
tution and form of government whenever they may deem it nec-
essary to their safety and happiness, provided such change be
not repugnant to the Constitution of the United States.
Section 3. That all persons are born equally free, and have
certain natural, essential, and inalienable rights, among
which may be reckoned the right of enjoying and defending
their lives and liberties; that of acquiring, possessing, and
protecting property, and of seeking and obtaining their safety
and happiness.
Section 4. That the free exercise and enjoyment of religious
profession and worship, without discrimination, shall forever
hereafter be gurranteed: and no person shall be denied any
civil or political rights, privilege or capacity, on account
of his opinions concerning religion, but the liberty of con-
science hereby secured, shall not be construed to dispense
with oaths or affirmations, excuse acts of licentiousness,
by bigamous or polygamous marriage, or otherwise, or justify
practices inconsistent with the good order, peace, or safety
of the State, or opposed to the civil authority thereof, or
of the United States. No person shall be required to attend
or support any ministry or place of worship, religious sect
or denomination, against his consent; nor shall any preference
be given by law to any religious denomination or mode of worship.
Section 5. That all elections shall be free and open; and no
power, civil or military, shall at any time interfere to pre-
vent the free axercise of the right of suffrage.
Section 6. That courts of justice shall be open to every
person, and a speedy remedy afforded for every injury of person,
property, or character; and that right and justice should be
administered without sale, denial or, delay.
Section 7. That 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
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 affirma-
tion, reduced to writing.
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18 84 MONTANA CONSTITUTION: PREAMBLE AND DECLARATION OF RIGHTS
Section 8. That until otherwise provided by law, no person
shall for felony be proceeded against criminally, otherwise
than by indictment, except in cases arising in the land or
navel forces, or in the militia when in actual service in the
time of war or public danger. In all other cases, offenses
shall be prosecuted criminally be indictment or information.
Section 9 . That treason against the State shall consist only
in levying war against it, or in adhering to its enemies,
giving them aid and comfort; that no person shall be convicted
of treason, except on the testimony of two witnesses to the
same overt act, or on his confession in open court; that no
person shall be attainted of treason or felony by the Legis-
lative Assembly; that no conviction shall work corruption of
blood or forfeiture of estate; that the estates of persons
who may destroy their own lives shall descend or vest as in
cases of natural death.
Section 10. That no law shall be passed impairing the free-
dom of speech; that every person shall be free to speak, write,
or publish whatever he will on any subject, being responsible
for all abuse of that liberty; and that in all suits and prose-
cutions for libel, the truth thereof may be given in evidence,
and the jury, under the direction of the court, shall deter-
mine the law and the fact.
Section 11. That no ex-post facto law, nor law impairing the
obligation of contracts, or retrospective in its operation, or
making any irrevocable grant of special privileges, franchises,
or immunities shall be passed by the Legislative Assembly.
Section 12. That no person shall be imprisoned for debt ex-
cept in such manner as may be prescribed by law, upon refusal
to deliver up his estate for the benefit of his creditors, or,
in cases of tort, where there is strong presumption of fraud.
Section 13. That the right of any person to keep and bear arms
in defense of his own home, person and property, or in aid of
the civil power when thereto legally summoned, shall not be
called in question, but nothing herein contained shall be con-
strued to justify the practise of carrying concealed weapons.
Section 14. That private property shall not be taken for pri-
vate use, unless by consent of the owner, except for private
ways of necessj.ty, and except for reservoirs drains, flumes,
or ditches on or across the lands of others, for agricultural,
mining, milling, domestic, or sanitary purposes.
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1884 MONTANA CONSTITUTION: PREAMBLE AND DECLARATION OF RIGHTS
Section 15. That private property shall not be taken or
damanged for public or private use, without just compensation.
Such compensation shall be ascertained by a board of commis-
sioners, of not less than three freeholders, or by a jury, when
required by the owner of the property, is such manner as may
be prescribed by law; and until the same shall be paid to the
owner or into court for the owner, the property shall not be
needlessly disturbed, or the proprietary rights of the owner
therein divested; and whenever an attempt is made to take pri-
vate property for a use alleged to be public, the question
whether the contemplated use be really public shall be a judi-
cial question, and determined as such without regard to any
legislative assertion that the use is public.
Section 16. That in criminal prosecutions , the accused shall
have the right to appear and defend in person and by counsel;
to demand the nature and cause of the accusation; to meet the
witnesses against him face to f ace ; to have process to compel
the attendance of witnesses in his behalf, and a speedy public
trial by an impartial jury of the county or district in which
the offense is alleged to have been committed.
Section 17. That no person shall be imprisoned for the purpose
of securing his testimony in any case longer than may be necessary
in order to take his deposition. If he can give secutiry he
shall be discharged; if he can not give security, his deposi-
tion shall be taken by some Judge of the Supreme, district, or
county court, at the earliest time he can attend, at some con-
venient place appointed by him for that purpose, of which time
and place the accused and the attorney prosecuting for the people
shall have reasonable notice. The accused shall have the right
to appear in person and by counsel. If he have no counsel, the
judge shall assign him one in that behalf only. On the comple-
tion of such examination, the witness shall be discharged on
his own recognizance, entered into before said judge, but such
deposition shall not be used, if in the opinion of the court
the personal attendance of the witness might be procured by the
prosecution, or is procured by the accused. No exception shall
be taken to such deposition as to matters of form.
Section 18. That no person shall be compelled to testify against
himself in a criminal case, nor shall any person be twice put
in jeopardy for the same offense.
Section 19. That all persons shall be bailable by sufficient
sureties, except for capital offenses when the proof is evident
or the presumption great.
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1884 MONTANA CONSTITUTION: PREAMBLE AND DECLARATION OF RIGHTS
Section 20. That excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.
Section 21. That the privilege of the writ of habeas corpus
shall never be suspended, unless in case of rebellion or in-
vasion the public safety require it.
Section 22. That the military shall always be in strict
subordination to the civil power; that no soldier shall, in
time of peace, be quartered in any house without the consent
of the owner, nor in time of war, except in the manner pre-
scribed by law.
Section 23. The right of trial by jury shall remain inviolate
in criminal cases; but a jury in civil cases in all courts, or
in criminal cases not of the grade of felony, may consist of
less than twelve men, as may be prescribed by law. And the
Legislative Assembly may provide by law that, in civil cases,
any number, not less than two-thirds of a jury, may find a
verdict, and that such verdict, when so found, shall be taken
and held to have the same force and effect as if all of such
jury concurred therein. Hereafter, a grand jury shall con-
sist of twelve men, any nine of whom, concurring, may find an
indictment; .Provided , The Legislative Assembly may change,
regulate, or abolish the grand jury system.
Section 24. That the people have the right peaceable to
assemble for the common good, and to apply to those invested
with the powers of government for redress of grievances, by
petition or remonstrance.
Section 25. That no person shall be deprived of life, liberty,
or property without due process of law.
Section 26. That there shall never be in this State either
slavery or involuntary servitude, except as a punishment for
crime, whereof the party shall have been duly convicted.
Section 27. The provisions of this Constitution are mandatory
and prohibitory, unless by express words they are declared to
be otherwise.
Section 28. The enumeration in this Constitution of certain
rights shall not be construed to deny, impair, or disparage
others retained by the people.
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1884 MONTANA CONSTITUTION: PREAMBLE AND DECLARATION OF RIGHTS
ARTICLE III
DISTRIBUTION OF POWERS
Section 1. The powers of the government of this State are
divided into three distinct departments: The Legislative,
Executive, and Judicial; and no person, or collection of
persons , charged with the exercise of powers properly be-
longing to one of these departments, shall exercise any
powers properly belonging to either of the others, except as
in this Constitution expressly directed or permitted.
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APPENDIX C
THE VIRGINIA DECLARATION OF RIGHTS
(Adopted June 12, 1776)*
A DECLARATION of RIGHTS made by the representa-
tives of the good people of Virginia, assembled
in full and free Convention; which rights do
pertain to them, and their posterity, as the
basis and foundation of government.
1. That all men are by nature equally free and independent,
and have certain inherent rights, of which, when they enter
into a state of society, they cannot, by any compact, de-
prive or divest their posterity; namely, the enjoyment of
life and liberty, with the means of acquiring and possessing
property, and pursuing and obtaining happiness and safety.
2. That all power is vested in, and consequently derived
from, the people; that magistrates are their trustees and
servants, and at all times amendable to them.
3. That government is, or ought to be, instituted for the
common benefit, protection, and security, of the people,
nation, or community, of all the various modes and forms of
government that is best, which is capable of producing the
greatest degree of happiness and safety, and is most effec-
tually secured against the danger of mal-administration; and
that whenever any government shall be found inadequate or
contrary to these purposes, a majority of the community hath
an indubitable, unalienable, and indefeasible right, to re-
form, alter, or abolish it, in such manner as shall be judged
most conducive to the publick weal.
4. That no man, or set of men, are entitled to exclusive or
separate emoluments or privileges from the community, but in
consideration of publick services; which, not being descendible,
neither ought the offices of magistrate, legislator, or judge,
to be hereditary.
5. That the legislative and executive powers of the state
should be separate and distinct from the judiciary; and, that
the members of the two first may be restrained from oppression,
by feeling and participating the burthens of the people, they
*Robert Rutland, The Birth of the Bill of Rights; 1776-1791
(Chapel Hill: University of North Carolina Press, 19 55) , pp.
231-233.
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THE VIRGINIA DECLARATION OF RIGHTS
should, at fixed periods, be reduced to a private station,
return into that body from which they were originally taken,
and the vacancies be supplied by frequent, certain, and
regular elections, in which all, or any part of the former
members, to be again eligible, or ineligible, as the laws
shall direct.
6. That elections of members to serve as representatives
of the people, in assembly, ought to be free; and that all
men, having sufficient evidence of permanent common interest
with, and attachment to, the community, have the right of
suffrage, and cannot be taxed or deprived of their property
for publick uses without their own consent, or that of their
representatives so elected, nor bound by any law to which
they have not, in like manner, assented for the publick good.
7. That all power of suspending laws, or the execution of
laws, by any authority without consent of the representatives
of the people, is injurious to their rights, and ought not to
be exercised.
8. That in all capital or criminal prosecutions a man hath
a right to demand the cause and nature of his accusation, to
be confronted with the accusers and witnesses, to call for
evidence in his favour, and to a speedy trial by an impartial
jury of his vicinage, without whose unamious consent he can-
not be found guilty, nor can he be compelled to give evidence
against himself; that no man be deprived of his liberty ex-
cept by the law of the land, or the judgment of his peers.
9. That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
10. That general warrants, whereby any officer or messenger
may be commanded to search suspected placed without evidence
of a fact committed, or to seize any person or persons not
name, or whose offence is not particularly described and
supported by evidence, are grevious and oppressive, and ought
not to be granted.
11. That in controversies respecting property, and in suits
between man and man, the ancient trial by jury is preferable
to any other, and ought to be held sacred.
12. That the freedom of the press is one of the great bulwarks
ot liberty, and can never be restrained but by despotick
governments .
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THE VIRGINIA DECLARATION OF RIGHTS
13. That a well regulated miltia, composed of the body of the
people, trained to arms, is the proper, natural, and safe de-
fence of a free state; that standing armies, in time of peace,
should be avoided, as dangerous to liberty; and that, in all
cases, the military should be under strict subordination to,
and governed by, the civil power.
14. That the people have a right to uniform government; and
tnerefore, that no government separate from, or independent of,
the government of Virginia, ought to be erected or established
within the limits thereof.
15. That no free government, or the blessings of liberty, can
be preserved to any people but by a firm adherence to justice,
moderation, temperance, frugality, and virtue, and by frequent
recurrence to fundamental principles.
16. That religion, or the duty which we owe to our CREATOR,
and the manner of discharging it, can be directed only by
reason and conviction, not by force or violence; and therefore
all men are equally entitled to the free exercise of religion,
according to the dictates of conscience; and that it is the
mutual duty of all to practise Christian forbearance, love,
and charity, towards each other.
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APPENDIX D
FEDERAL BILL OF RIGHTS AND THE THIRTEENTH AND FOURTEENTH
AMENDMENTS
AMENDMENT I
Congress shall make no law respecting an establishment of reli-
gion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.
AMENDMENT II
A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms,
shall not be infringed.
AMENDMENT III
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in
a manner to be prescribed by law.
AMENDMENT IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or
things to be seized.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
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FEDERAL BILL OF RIGHTS AND THE THIRTEENTH AND FOURTEENTH
AMENDMENTS
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against him-
self; nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use, without just compensation.
AMENDMENT VI
In all criminal prosecutions the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
AMENDMENT VII
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise re-
examined in any Court of the United States, than according to
the rules of the common law.
AMENDMENT VIII
Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments .inflicted.
AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
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FEDERAL BILL OF RIGHTS AND THE THIRTEENTH AND FOURTEENTH
AMENDMENTS
AMENDMENT X
The powers not delegated to the United States by the Consti-
tution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.
(The first ten Amendments were adopted in 1791.)
AMENDMENT XIII
Section 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article
by appropriate legislation. [Adopted in 1865.]
AMENDMENT XIV
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or pro-
perty, without due process of law; nor deny to any person with-
in its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting
the whole number of persons in each State, exluding Indians
not taxed. But when the right to vote at any election for the
choice of electors for President and Vice President of the
United States, Representatives in Congress, the Executive and
Judicial officers of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of the United States,
or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be
reduced in the proportion which the niomber of such male citizens
shall bear to the whole number of male citizens twenty-one years
of age in such State.
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FEDERAL BILL OF RIGHTS AND THE THIRTEENTH AND FOURTEENTH
AMENDMENTS
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold
any office, civil or military, under the United States, or
under any State, who, having previously taken an oath, as a
member of Congress, or as an officer of the United States, or
as a member of any State legislature, or as an executive or
judicial officer of any State, to support the Constitution of
the United States, shall have engaged in insurrection or rebel-
lion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two- thirds of each
House, remove such disability.
Section 4. The validity of the pi±)lic debt of the United States,
authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection
or rebellion, shall not be questioned. But neither the United
States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave,
but all such debts, obligations and claims sha.ll be held illegal
and void.
Section 5. The Congress shall have power to enforce, by appro-
priate legislation, the provisions of this article. [Adopted in
1868. ]
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APPENDIX E
SELECTED RIGHTS PROVISIONS
This appendix reflects the variety of wordings other states
have in their declarations of rights. Generally speaking,
the topics below with the most provisions have the greatest
variety of statements. The appendix also suggests alternative
subjects and wording that might be considered for inclusion in
the declaration of rights.
PREAMBLE AND POLITICAL THEORY PROVISIONS
Preamble
Montana Const. We, the people of the state of Montana,
grateful to Almighty God for the blessings of liberty, in
order to secure the advantages of a state government, do, in
accordance with the provisions of the enabling act of Congress,
approved the twenty-second of February, A.D. 1889, ordain and
establish this constitution.
Indiana Const. To the end that justice be established, public
order maintained, and liberty perpetuated: We, the people of
the State of Indiana, grateful to Almighty God for the free
exercise of the right to choose our own form of government,
do ordain this Constitution.
Maine Const. We the people of Maine, in order to establish
justice , insure tranquility, provide for our mutual defence,
promote our common welfare, and secure to ourselves and our
posterity the blessings of liberty, acknowledging with grate-
ful hearts the goodness of the Sovereign Ruler of the Universe
in affording us an opportunity, so favorable to the design;
and, imploring His aid and direction in its accomplishment,
do agree to form ourselves into a free and independent State,
by the style and title of the State of Maine, and do ordain
and establish the following Constitution for the government
of the same.
Georgia Const. To perpetuate the principles of free govern-
ment, insure justice to all, preserve peace, promote the
interest and happiness of the citizen, and transmit to poster-
ity the enjoyment of liberty, we, the people of Georgia, re-
lying upon the protection and guidance of Almighty God, do
ordain and establish this Constitution.
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SELECTED RIGHTS PROVISIONS
Origin and Purpose of Government
Montana Const. Art. Ill, Sec. 1. All political power is
vested in and derived from the people; all government of
right originates with the people; is founded upon their will
only, and is instituted solely for the good of the whole.
Minnesota Const. Art. I, Sec. 1. Government is instituted
for the security, benefit and protection of the people, in
whom all political power is inherent, together with the right
to alter, modify or reform such government, whenever the public
good may require it.
Alabama Const. Art. I, Sec. 35. That the sole object and
only legitimate end of government is to protect the citizen
in the enjoyment of life, liberty, and property, and when the
government assumes other functions it is usurpation and
oppression.
Ohio Const. Art. I, Sec. 2. All political power is inherent
in the people. Government is instituted for their equal pro-
tection and benefit, and they have the right to alter, reform,
or abolish the same, whenever they may deem it necessary; and
no special privileges or immunities shall ever be granted,
that may not be altered, revoked, or repealed by the General
Assembly.
Verm.ont Const. Chap. I, Art. 6. That all power being
originally inherent in and co [n] sequently derived from the
people, therefore, all officers of government, whether
legislative or executive, are their trustees and servants;
and at all times, in a legal way, accountable to them.
Georgia Const. Art. I, Para. II. Protection the duty of
government. Protection to person and property is the para-
mount duty of government, and shall be impartial and complete.
Tennessee Const. Art. I, Sec. 2. That government being
instituted for the common benefit, the doctrine of non-re-
sistance against arbitrary power and oppression is absurd,
slavish, and destructive of the good and happiness of
mankind .
West Virginia Const. Art. Ill, Sec. 2. All power is vested
in, and consequently derived from, the people. Magistrates
are their trustees and servants, and at all times amenable
to them .
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SELECTED RIGHTS PROVISIONS
New Hampshire Const. Part First, Art. 38. A froqurnt re-
currence to the fundamental principles of the constitution,
and a constant adherence to justice, moderation, temperance,
industry, frugality, and all the social virtues, arc indis-
pensably necessary to preserve the blessings of liberty and
good government; the people ought, therefore, to have a
particular regard to all those principles in the choice of
their officers and representatives, and they have a right to
require of their lawgivers and magistrates, an exact and
constant observance of them, in the formation and execution
of the laws necessary for the good administration of government,
Maryland Const. Art. 43. That the Legislature ought to
encourage the diffusion of knowledge and virtue, the extension
of a judicious system of general education, the promotion of
literature, the arts, sciences, agriculture, commerce and
manufactures, and the general melioration of the condition of
the People. The Legislature may provide that land actively
devoted to farm or agricultural use shall be assessed on the
basis of such use and shall not be assessed as if sub-divided.
Popular Sovereignty
Montana Const. Art. Ill, Sec. 2. 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, when-
ever they may deem it necessary to their safety and happiness,
provided such change be not repugnant to the constitution of
the United States.
Hawaii Const. Art. I, Sec. 1. All political power of thd s
State is inherent in the people; and the responsibility for
the exercise thereof rests with the people. All government
is founded on this authority.
Connecticut Const. Art. I, Sec. 2. All political power is
inherent in the people, and all free governments are founded
on their authority, and instituted for their benefit; and
they have at all times an undeniable and indefeasible right
to alter their form of government in such manner as they may
think expedient.
West Virginia Const. Art. Ill, Sec. 20. Free government and
the blessings of liberty can be preserved to any people only
by a firm adherence to justice, moderation, temperance, fru-
gality and virtue, and by a frequent recurrence to fundamental
principles .
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SELECTED RIGHTS PROVISIONS
Maryland Const. Art. 6. That all persons invested with the
Legislative or Executive powers of Governinent are the Trustees
of the Public, and, as such, accountable for their conduct:
Wherefore, whenever the ends of Government are perverted, and
public liberty manifestly endangered, and all other means of
redress are ineffectual, the People may, and of right ought,
to reform the old, or establish a new Government; the doctrine
of non-resistence against arbitrary power and oppression is
absurd, slavish and destructive of the good and happiness of
mankind .
Inalienable Rights
Montana Const. Art. Ill, Sec. 3. All persons are born
equally free, and have certain natural, essential, and in-
alienable rights, among which may be reckoned the right of
enjoying and defending their lives and liberties, of acquiring,
possessing, and protecting property, and of seeking and ob-
taining their safety and happiness in all lawful ways.
Hawaii Const. Art. I, Sec. 2. All persons are free by
nature and are equal in their inherent and inalienable rights.
Among these rights are the enjoyment of life, liberty and the
pursuit of happiness, and the acquiring and possessing of
property. These rights cannot endure unless the people
recognize their corresponding obligations and responsibilities.
Connecticut Const. Art. I, Sec. 1. All men when they form
a social compact, are equal in rights; and no man or set of
men are entitled to exclusive public emoluments or privileges
from the community.
Oregon Const. Art. I, Sec. 20. No law shall be passed
granting to any citizen or class of citizens privileges, or
immunities, which, upon the same terms, shall not equally
belong to all citizens.
Missouri Const. Art. I, Sec. 2. That all constitutional
government is intended to promote the general welfare of the
people; that all persons have a natural right to life, liberty,
the pursuit of happiness and the enjoynient of the gains of
their own industry; that all persons are created equal and
are entitled to equal rights and opportunity under the law;
that to give security to thc>sc things is the principal office
of government, and that when government docs not confc;r this
security, it fails in its chief design.
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SELECTED RIGHTS FKOVlSlONi
Virginia Const. Art. I, Sec. 1. That all men are by nature
equally free and independent and have certain inherent rights,
of which, when they enter into a state of society, they can-
not, by any compact, deprive or divest their posterity: namely,
the enjoyment of life and liberty, with the means of acquiring
and possessing property, and pursuing and obtaining happiness
and safety.
Puerto Rico Const. Art. II, Sec. 7. The rights of life,
liberty and the enjoyment of property is recognized as a
fundamental right of man. The death penalty shall not
exist ....
Wyoming Const. Art. I, Sec. 3. Since equality in the en-
joyment of natural and civil rights is only made sure through
political equality, the laws of this state affecting the
political rights and privileges of its citizens shall be
without distinction of race, color, sex, or any circumstance
or condition whatsoever other than individual incompetency,
or unworthiness duly ascertained by a court of competent
jurisdiction.
Open Elections
Montana Const. Art. Ill, Sec. 5. All elections shall be
free and open, and no power, civil or military, shall at any
time interfere to prevent the free exercise of the right of
suffrage .
Puerto Rico Const. Art. II, Sec. 2. The laws shall guarantee
the expression of the will of the people by means of equal,
direct and secret universal sufrage and shall protect the
citizen against any coercion in the exercise of the electoral
franchise .
Virginia Const. Art. I, Sec. 6. That all elections ought
to be free; and that all men, having sufficient evidence of
permanent common interest with, and attachment to, the com-
munity, have the right of suffrage, and cannot be taxed, or
deprived of, or damaged in, their property for public uses,
without their own consent, or that of their representatives
duly elected, or bound by any law to which they have not, in
like manner, assented for the public good.
North Carolina Const. Art. I, Sec. 9, 10. For redress of
grievances and for amending and strengthening the laws,
elections shall be often held.
All elections shall bo free.
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SELECTED RIGHTS PROVISIONS
Maryland Const. Art. 7. That the right of the People to
participate in the Legislature is the best security of liberty
and the foundation of all free Government; for this purpose
elections ought to be free and frequent; and every white male
citizen having the qualifications prescribed by the Consti-
tution, ought to have the right of suffrage.
Maryland Const. Art. 34. That a long continuance in the
Executive Departments of power or trust is dangerous to
liberty; a rotation therefore, in those departments is one
of the best securities of permanent freedom.
Separation of Powers
Montana Const. Art. IV, Sec. 1. The powers of the govern-
ment of this state are divided into three distinct departments;
The legislative, executive, and judicial, and no person or
collection of persons charged with the exercise of powers
properly belonging to one of these departments shall exercise
any powers properly belonging to either of the others, except
as in this constitution expressly directed or permitted.
Kansas Const. Sec. 27, 28. The powers of the government of
the Commonwealth of Kentucky shall be divided into three
distinct departments, and each of them be confined to a
separate body of magistracy, to wit: Those which are legis-
lative, to one; those which are executive, to another; and
those which are judicial, to another.
No person or collection of persons, being of one of those
departments, shall exercise any power properly belonging to
either of the others, except in the instances hereinafter
expressly directed or permitted.
Military Provisions
Montana Const. Art. Ill, Sec. 22, 31. The military shall
always be in strict subordination to the civil power; no
soldier shall in time of peace be quartered in any house
without the consent of the owner, nor in time of war, except
in the manner prescribed by law.
No armed person or persons or armed body of men shall be
brought into this state for the preservation of the peace, or
the suppression of domestic violence, except upon the appli-
cation of the legislative assembly, or of the gcvernor when
llu' 1 cq i sl.it ive assembly cannot bc^ convened.
FKI.rCTKD IUGHT5" rHOVU'TONS
Iowa Const. Art. 1, Sec. 14, 15. 'I'ho luilitaiy shall bt^
subordinate to the civil power. No standing army shall be
kept up by the State in time of peace; and in time of war,
no appropriation for a standing army shall be for a longer
time than two years.
No soldier shall, in time of peace, be quartered in any house
without the consent of the owner, nor in time of war except
in the manner prescribed by law.
Alabama Const. Art. I, Sec. 27. That no standing army
shall be kept up without the consent of the legislature, and,
in that case, no appropriation for its support shall be made
for a longer term than one year; and the military shall, in
all cases, and at all times, be in strict subordination to
the civil power.
Tennessee Const. Art. I, Sec. 25. That no citizen of this
State, except such as are employed in the army of the United
States, or militia in actual service, shall be subjected to
punishment under the martial or military law. That martial
law, in the sense of the unrestricted power of military officers,
or others, to dispose of the persons, liberties or property of
the citizen, is inconsistent with the principles of free
government, and is not confided to any department of the
government of this State.
Maine Const. Art. I, Sec. 14. No person shall be subject
to corporal punishment under military law, except such as are
employed in the army or navy, or in the militia when in actual
service in time of war or public danger.
Tennessee Const. Art. I, Sec. 28. That no citizen of this
State shall be compelled to bear arms, provided he will pay
an equivalent, to be ascertained by law.
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SELECTED RIGHTS PROVISIONS
SUBSTANTIVE RIGHTS
Freedom of Speech and Press
Montana Const. ^rt^_Jllj_SeCj^_10_. No law shall be passed im-
pairing the freedom of speech; every person shall be free to
speak, write, or publish whatever he will on any subject,
being responsible for all abuse of that liberty; and that in
all suits and prosecutions for libel, the truth thereof may
be given in evidence; and the jury, under the direction of
the court, shall determine the law and the facts.
New Jersey Const. Art. I, Sec. 6. Every person may freely
speak, write and publish his sentiments on all subjects,
being responsible for the abuse of that right. No law shall
be passed to restrain or abridge the liberty of speech or of
the press. In all prosecutions or indictments for libel,
the truth may be given in evidence to the jury; and if it
shall appear to the jury that the matter charged as libelous
is true, and was published with good motives and for justifi-
able ends, the party shall be acquitted; ana the jury shall
have the right to determine the law ana the fact.
Indiana Const. Art. I, Sec. 9, 10. No law shall be passed,
restraining the free interchange of thought and opinion, or
restricting the right to speak, write, or print, freely, on
any subject whatever; but for the abuse of that right, every
person shall be responsible.
In all prosecutions for libel, the truth of the matters
alleged to be libelous may be given in justification.
Illinois Const. Art^__I^_Sec^._j4. All persons may speak, write
ana publish freely, being responsible for the abuse of that
liberty. In trials for libel, both civil and criminal, the
truth, when published with good motives ana for justifiable
ends, shall be a sufficient defense.
Arka_nja.s_^njjt._ Ar_t._IJ,_Sec_^^. The libertv of the press
shall forever remain inviolate. The free communication of
thoughts and opinions _ij^ one_ of the invaluable rights of man ;
and all persons may freely write and publish their sentiments
on all subjects, being responsible for the abuse of such right.
In nil criPiinnl prospcution for libel, tlic truth rav be given
in ovi,ipM,f <.< t i,,' iuiv: niui , it it shnll .ippc.ir to the jury
(Uat (he m.-,((.:, .;..ni.,.-.l .-»:. liLrUuiN I:: t i lu- , .uui w.u; PuMisnou
wiLii .joou iiu.tive.s .-tud tvu lustitidble enu:i , t,ho partv charcrod
shall be acquj.tL«jU.
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SELECTED RIGHTS PROVISIONS
Vermont Const. Chap. I^ Art. 13. That tlie people have a right
to freedom of speech, and of v/ritinq and publishing their sen-
timents, concerning the transactions of government, and there-
fore the freedom of the press ought not to be restrained.
Right of Assembly
Montana Const. Art. Ill, Sec. 26. The people shall have the
right peaceably to assemble for the common good, and to
apply to those invested with the powers of government for re-
dress of grievances by petition or remonstrance.
Puerto Rico Const. Art_. II , Sec. 6 . Persons may join with
each other and organize freely for any lawful purpose, except
in military or quasi-military organizations.
Freedom of Religion
Montana Const. Artj_ III, Sec. 4. The free exercise and en-
joyment of relTgTous profession and worship, without discri-
mination, shall forever hereafter be guaranteed, and no
person shall be denied any civil or political right or privi-
lege on account of his opinions concerning religion, but the
liberty of conscience hereby secured shall not be construed
to aispense with oaths or affirmations, excuse acts of licen-
tiousness, by bigamous or polygamous marriage, or otherwise,
or justify practices inconsistent with the good order, peace,
or safety of the state, or opposed to the civil authority
thereof, or of the United States. No person shall be required
to attend any place of worship or support anv ministry, reli-
gious sect, or denomination, against his consent; nor shall
any preference be given by law to any religious denomination
or mode of worship.
New Jersey Const. Art. I, Sec. 3, 4. No person shall be de-
prived of the Inestimable privilege of worshiping Almighty
God in a manner agreeable to the dictates of his own conscience;
nor unaer any pretense whatever be compelled to attend any
place of worship contrary to his faith and judgment; nor shall
any person be obliged to pay tithes, taxes, or other rates
for building or repairing any church or churches place or,
places of worship, or for the maintenance of any minister or
ministry, contrary to what he believes to be right or has
deliberately and voluntarily engaged to perform.
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SELECTED RIGHTS PROVISIONS
There shall be no establishment of one religious sect in pre-
ference to another; no religious or racial test shall be re-
quired as a qualification for any office or public trust.
Florida Const. Art. I, Sec. 3. Religious freedom. — There
shall be no law respecting the establishment of religion or
prohibiting or penalizing the free exercise thereof. Religious
freedom shall not justify practices inconsistent with public
morals, peace or safety. No revenue of the state or any poli-
tical subdivision or agency thereof shall ever be taken from
tlie public treasury directly or indirectly in aid of any
church, sect, or religious denomination or in aid of any sec-
tarian institution.
Arkansas Const. Art. II, Sec. 24. All men have a natural and
indefeasible right to worship Almighty God according to the
dictates of their own consciences; no man can, of right, be
compelled to attend, erect, or support any place of worship;
or to maintain any ministry against his consent. No human
authority can, in any case or manner whatsoever control or
interfere with the right of conscience; and no preference
shall ever be given, by law, to any religious establishment,
denomination or mode of worship, above anv other.
Alabama Const. Art. I, Sec. 3. That no religion shall be
establishea by law; that no preference shall be given by law
to any religious sect, society, denomination, or mode of wor-
ship; that no one shall be compelled by law to attend any place
of worship; nor to pay any tithes, taxes, or other rate for
building or repairing any place of worship, or for maintaining
any minister or ministry; that no religious test shall be required
as a qualification to any office or public trust under this
state; and that the civil rights, privileges, anu capacities
of any citizen shall not be in any manner affected by his
religious principles.
South Dakota Const. Art. VI, Sec. 3. The right to worship
God according to the dictates of conscience, shall never be
infringed. No person shall be denied any civil or political
right, privilege or position on account of his religious
opinions; but the liberty of conscience hereby secureu shall
not be so construed as to excuse licentiousness, the invasion
of the rights of others, or justify practices inconsistent
with the peace or safety of the state.
No person shall be compelled to attend or support any ministry
or place of worship against his consent nor shall any prefer-
ence be given by law to any religious establishment or mode
of worship. No money or property of the state shall be given
or appropriated for the benefit of any sectarian or religious
society or institution.
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SELECTED RIGHTS PROVISIONS
New Hampshire Const. Part First, Art. 6. As morality and
piety, rightly grounaed on high principles, will give the
best ana greatest security to government, and will lay, in
the hearts of men, the strongest obligations to due subjec-
tion; and as the knowledge of these is most likely to be
propagated through a society, therefore, the several parishes,
bodies corporate, or religious societies shall at all times
have the right of electing their own teachers, and of con-
tracting with them for their support or maintenance, or both.
But no person siiall ever be compelled to pay towards the
support of the schools of any sect or denomination. And
every person, denomination or sect shall be equally under
the protection of the law; and no subordination of any one
sect, denomination or persuasion to another shall ever be
established.
Right to Bear Arms
Montana Const. Art. Ill, Sec. 13. Tlie right of anv person
to keep or bear arms in defense of his own home, oerson, and
property, or in aid of the civil power when thereto legally
summoned, shall not be called in question, but nothing herein
contained shall be held to permit the carrying of concealed
weapons.
Idaho Const. Art. I, Sec. 11. The people have the right to
bear arms for their security and defense; but the legisla-
ture snail regulate the exercise of this right by law.
Pennsylvania Const. Art. I, Sec. 21. The right of the citizens
to bear arras in defence of themselves and the State shall not
be questioned.
Tennessee Const. Art. I, Sec. 26. That the citizens of this
State have a right to keep and to Ijear arms for their common
defense; but the Legislature shall have pov/er, by law, to
regulate the wearing of arms with a view to prevent crime.
Hawaii Const. Art. I, Sec, lb. A well regulated militia being
necessary to the security of a free state, the right of the
people to keep ana bear arms shall not be infringed.
-391-
SELECTED RIGHTS PROVISIONS
PROCEDURAL RIGHTS
Montana Const. Art. Ill/ Sec. 16. In all criminal prosecutions
the accused shall have the right to appear and defend in person
and by counsel; to demand the nature and cause of the accusa-
tion; to meet the witnesses against him face to face; to have
process to compel the attendance of witnesses in his behalf,
and a speedy public trial by an impartial jury of the county or
district in which the offense is alleged to have been committed,
subject to the right of the state to have a change of venue for
any of the causes for which the defendant may obtain the same.
Vermont Const. Chap. I, Art. 10. That in all prosecutions for
criminal offenses, a person hath a right to be heard by himself
and his counsel; to demand the cause and nature of his accusa-
tion; to be confronted with the witnesses; to call for evidence
in his favor, and a speedy public trial by an impartial jury of
the country; without the unanimous consent of which jury, he
cannot be found guilty; nor can he be compelled to give evidence
against himself; nor can any person be justly deprived of his
liberty, except by the laws of the land, or the judgment of his
peers; provided, nevertheless, in criminal prosecutions for
offenses not punishable by death, the accused, with the consent
of the prosecuting officer entered of record, may in open court
or by a writing signed by him and filed with the court, waive
his right to a jury trial and submit the issue of his guilt to
the determination and judgment of the court without a jury.
Virginia Const. Art. I, Sec. 8. That in criminal prosecutions
a man hath a right to demand the cause and nature of his accu-
sation, to be confronted with the accusers and witnesses, and
to call for evidence in his favor, and he shall enjoy the right
to a speedy and public trial, by an impartial jury of his
vicinage, without whose unanimous consent he cannot be found
guilty. He shall not be deprived of life or liberty, except by
the law of the land or the judgment of his peers, nor be compelled
in any criminal proceeding to give evidence against himself , nor
be put twice in jeopardy for the same offense.
Hawaii Const. Art. 1, Sec. 11. In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial ,
by an impartial jury of the district wherein the crime shall
have been committed, which district shall have been previously
ascertained by law, or of such other district to which the pro-
secution may be removed with the consent of the accused; to be
informed of the nature and cause of the accusation; to be con-
fronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor; and to have the
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SELECTED RIGHTS PROVISIONS
assistance of counsel for his defense. The State shall pro-
vide counsel for an indigent defendant charged with an offense
punishable by imprisonment for more than sixty days.
Maryland Const. Art. 21. That in all criminal prosecutions,
every man hath a right to be informed of the accusation against
him; to have a copy of the Indictment, or charge, in due time
(if required) to prepare for his defence; to be allowed counsel;
to be confronted with the witnesses against him; to have pro-
cess for his witnesses; to examine the witnesses for and against
him on oath; and to a speedy trial by an impartial jury, without
whose unanimous consent he ought not to be found guilty.
North Carolina Const. Art. I, Sec. 23. In all criminal prose-
cutions , every person charged with crime has the right to be
informed of the accusation and to confront the accusers and
witnesses with other testimony, and to have counsel for defense,
and not be compelled to give self-incriminating evidence, or to
pay costs, jail fees, or necessary witness fees of the defense,
unless found guilty.
Michigan Const. Art. I, Sec. 20. In every criminal prosecution,
the accused shall have the right to a speedy and public trial by
an impartial jury, which may consist of less than 12 jurors in
all courts not of record; to be informed of the nature of the
accusation to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor; to
have the assistance of counsel for his defense; to have an appeal
as a matter of right; and in courts of record, when the trial
court so orders, to have such reasonable assistance as may be
necessary to perfect and prosecute an appeal.
Mississippi Const. Art. Ill, Sec. 25. No person shall be de-
barred from prosecuting or defending any civil cause for or
against him or herself, before any tribunal in the state, by him
or herself, or counsel, or both.
Puerto Rico Const. Art. II, Sec. 11. In all criminal prosecu-
tion, the accused shall enjoy the right to have a speedy and
public trial, to be informed of the nature and cause of the
accusation and to have a copy thereof, to be confronted with
the witnesses against him, to have compulsory process for ob-
taining witnesses in his favor, to have assistance of counsel,
and to be presumed innocent.
In all prosecutions for a felony that accused shall have the
right of trial by an impartial jury composed of twelve residents
of the district, who may render their verdict by a majority vote
which in no case may be less than nine.
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SELECTED RIGHTS PROVISIONS
No person shall be compelled in any criminal case to be a wit-
ness against himself and the failure of the accused to testify
may be neither taken into consideration nor commented upon
against him.
No person shall be twice put in jeopardy of punishment for the
same offense.
Before conviction every accused shall be entitled to be ad-
mitted to bail.
Incarceration prior to trial shall not exceed six months nor
shall bail or fines be excessive. No person shall be imprisoned
for debt.
Judicial Remedies
Montana Const. Art. Ill, Sec. 6. Courts of justice shall be
open to every person, and a speedy remedy afforded for every
injury of person, property, or character; and that right and
justice shall be administered without sale, denial, or delay.
North Carolina Art. I, Sec. 18. All courts shall be open;
every person for an injury done him in his lands, goods, person,
or reputation shall have remedy by due course of law; and right
and justice shall be administered without favor, denial, or
delay.
Puerto Rico Const. Art. II, Sec. 8. Every person has the right
to the protection of law against abusive attacks on his honor,
reputation and private or family life.
New Hampshire Const. Part First, Art. 14. Every subject of
this state is entitled to a certain remedy, by having recourse
to the laws, for all injuries he may receive in his person,
property, or character; to obtain right and justice freely,
without being obliged to purchase it; completely, and without
any denial; promptly, and without delay; comformably to the
laws.
Pennsylvania Const. Art. I, Sec. 11. All courts shall be open;
and every man for an injury done him in his lands, goods, per-
son or reputation shall have remedy by due course of law, and
right and justice administered without sale, denial or delay.
Suits may be brought against the Commonwealth in such manner,
in such courts and in such cases as the Legislature may by
law direct.
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SELECTED RIGHTS PROVISIONS
Alabama Const. Art. I, Sec. 14. That the State of Alabama
shall never be made a defendant in any court of law or
equity.
Arizona Const. TVrt. II, Sec. 31. No law shall be enacted
in this State limiting the amount of damages to be recovered
for causing the death or injury of any person.
Initiation of Proceedings and Grand Jury
Montana Const. Art. Ill, Sec. 8. Criminal offenses of which
justice's courts and municipal and other courts , inferior to
the district courts, have jurisdiction, shall, in all courts
inferior to the district court, be prosecuted by complaint.
All criminal actions in the district court, except those on
appeal, shall be prosecuted by information, after examina-
tion and commitment by a magistrate, or after leave granted
by the court, or shall be prosecuted by indictment without
such leave of the court. A grand jury shall consist of seven
persons, of whom five must concur to find an indictment.
A grand jury shall only be drawn and summoned when the district
judge shall, in his discretion, consider it necessary, and
shall so order.
Alaska Const. Art. I, Sec. 8. No person shall be held to
answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a grand jury, except in cases
arising in the armed forces in time of war or public danger.
Indictment may be waived by the accused. In that case the
prosecution shall be by information. The grand jury shall con-
sist of at least twelve citizens, a majority of whom concurring
may return an indictment. The power of grand juries to inves-
tigate and make recommendations concerning the public welfare
or safety shall never be suspended.
Arizona Const. Art. II, Sec. 30. No person shall be prose-
cuted criminally in any court of record for felony or misde-
meanor, otherwise than by information or indictment; no person
shall be prosecuted for felony by information without having
had a preliminary examination before a magistrate or having
waived such preliminary examination.
Idaho Const. Art. I, Sec. 8. No person shall be held to answer
for any felony or criminal offense of any grade, unless on pre-
sentment or indictment of a grand jury or on information of the
public prosecutor, after a commitment by a magistrate, except
in cases of impeachment, in cases cognizable by probate courts
-395-
SELECTED RIGHTS PROVISIONS
or by justices of the peace, and in cases arising in the militia
when in actual service in time of war or public danger; provided,
that a grand jury may be summoned upon the order of the district
court in the manner provided by law, and provided further, that
after a charge has been ignored by a grand jury, no person shall
be held to answer, or for trial therefor, upon information of
the public prosecutor.
New Mexico Const. Art. II, Sec. 14. No person shall be held to
answer for a capital, felonious or infamous crime unless on a
presentment or indictment of a grand jury or information filed
by a District Attorney or Attorney General or their deputies,
except in cases arising in the militia when in actual service in
time of war or public danger. No person shall be so held on
information without having had a preliminary examination before
an examining magistrate, or having waived such preliminary
examination.
A grand jury shall be composed of such number, not less than
twelve, as may be prescribed by law. Citizens only, residing
in the county for which a grand jury may be convened and quali-
fied as prescribed by law, may serve on a grand jury. Concur-
rence necessary for the finding of an indictment by a grand
jury shall be prescribed by law; provided, such concurrence
shall never be by less than a majority of those who compose a
grand jury, and, provided, at least eight must concur in
finding an indictment when a grand jury is composed of twelve
in number. Until otherwise prescribed by law a grand jury
shall be composed of twelve in number of which eight must concur
in finding an indictment. A grand jury shall be convened upon
order of a judge of a court empowered to try and determine cases
of capital, felonious or infamous crimes at such times as to him
shall be deemed necessary, or a grand jury shall be ordered to
convene by such judge upon the filing of a petition therefor
signed by not less than seventy-five resident taxpayers of the
county, or a grand jury may be convened in any additional man-
ner as may be prescribed by law.
In all criminal prosecutions, the accused shall have the right
to appear and defend himself in person, and by counsel; to
demand the nature and cause of the accusation; to be confronted
with the witnesses against him; to have the charge and testimony
interpreted to him in a language that he understands; to have
compulsory process to compel the attendance of necessary wit-
nesses in his behalf, and a speedy public trial by an impartial
jury of the county or district in which the offense is alleged
to have been committed.
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SELECTED RIGHTS PROVISIONS
Due Process
Montana Const. Art. Ill, Sec. 27. No person shall be deprived
of life, liberty, or property without due process of law.
Alabama Const. Art. I, Sec. 7. That no person shall be accused
or arrested, or detained, except in cases ascertained by law,
and according to the form which the same has prescribed; and
no person shall be punished but by virtue of a law established
and promulgated prior to the offense and legally applied.
Tennessee Const. Art. I, Sec. 8. That no man shall be taken
or imprisoned, or disseized of his freehold, liberties or
privileges, or outlawed, or exiled, or in any manner destroyed
or deprived of his life, liberty or property, but by the judg-
ment of his peers or the law of the land.
Minnesota Const. Art. I, Sec. 2. No member of the State shall
be disfranchised, or deprived of any of the rights or privileges
secured to any citizen thereof, unless by the law of the land,
or the judgment of his peers. There shall be neither slavery
nor involuntary servitude in the State otherwise than the
punishment of crime, whereof the party shall have oeen duly
convicted.
Puerto Rico Const. Art. II, Sec. 7. No person shall be de-
prived of his liberty without due process of law. No person
in Puerto Rico shall be denied the equal protection of the
laws .
Hawaii Const. Art. I, Sec. 4. No person shall be deprived of
life, liberty or property without due process of law, nor be
denied the equal protection of the laws, nor be denied the en-
joyment of his civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or ancestry.
Illinois Const. Art. I, Sec. 2. No person shall be deprived
of life, liberty or property without due process of law nor
be denied the equal protection of the laws.
Maine Const. Art. I, Sec. 6-A. No person shall be deprived
of life, liberty or property without due process of law, nor
be denied the equal protection of the laws, nor be denied the
enjoyment of his civil rights or be discriminated against in
the exercise thereof.
Arizona Const. Art. II, Sec. 8. No person shall be disturbed
in his private affairs, or his home invaded, without author-
ity of law.
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SELECTED RIGHTS PROVISIONS
Michigan Const. Art. I, Sec. 17. No person shall ... be
deprived of life, liberty or property, without due process
of law. The right of all individuals, firms, corporations
and voluntary associations to fair and just treatment in
the course of legislative and executive investigations and
hearings shall not be infringed.
Alaska Const. Art. I, Sec. 7. No person shall be deprived
of life, liberty, or property, without due process of law.
The right of all persons to fair and just treatment in the
course of legislative and executive investigations shall
not be infringed.
Kentucky Const. Sec. 2. Absolute and arbitrary power denied,
Absolute and arbitrary power over the lives, liberty and
property of freemen exists nowhere in a republic, not even
in the largest majority.
South Dakota Const. Art. VI, Sec. 2. No person shall be
deprived of life, liberty or property without due process of
law. The right of persons to work shall not be denied, or
abridged on account of membership or non-membership in any
labor union, or labor organization.
Self-incrimination and Double Jeopardy
Montana Const. Art. III> Sec. 18. No person shall be com-
pelled to testify against himself, in a criminal proceeding,
nor shall any person be twice put in jeopardy for the same
offense .
New Mexico Const. Art. II, Sec. 15. No person shall be com-
pelled to testify against himself in a criminal proceeding,
nor shall any person be twice put in jeopardy for the same
offense; and when the indictment, information or affidavit
upon which any person is convicted charges different offenses
or different degrees of the same offense and a new trial is
granted the accused, he may not again be tried for an offense
or degree of the offense greater than the one of which he is
convicted.
Rhode Island Const. Art. I, Sec. 13. No man in a court of
common law shall be compelled to give evidence criminating
himself .
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SELECTED RIGHTS PROVISIONS
Habeas Corpus
Montana Const. Art. Ill/ Sec. 21. The privilege of the writ
of habeas corpiis shall never be suspended, unless, in case
of rebellion, or invasion, the public safety require it.
Texas Const. Art. I, Sec. 12. The writ of habeas corpus is
a writ of right, and shall never be suspended. The Legisla-
ture shall enact laws to render the remedy speedy and effec-
tual.
North Carolina Const. Art. I, Sec. 21. Every person restrained
of his liberty is entitled to a remedy to inquire into the
lawfulness thereof, and to remove the restraint if unlawful,
and that remedy shall not be denied or delayed. The privi-
lege of the writ of habeas corpus shall not be suspended.
Georgia Const. Art. I, Para. XI. The writ of Habeas Corpus
shall not be suspended.
Alabama Const. Art. I, Sec. 17. That the privilege of the
writ of habeas corpus shall not be suspended by the authorities
of this state.
Puerto Rico Const. Art. II, Sec. 13. The writ of habeas
corpus shall be granted without delay and free of costs. The
privilege of the writ of habeas corpus shall not be suspended,
unless the public safety requires it in case of rebellion,
insurrection or invasion. Only the Legislative Assembly shall
have the power to suspend the privilege of the writ of habeas
corpus and the laws regulating its issuance.
Florida Const. Art. I, Sec. 13. The writ of habeas corpus
shall be grantable of right, freely and without cost. It
shall be returnable without delay, and shall never be sus-
pended unless, in case of rebellion or invasion, suspension
is essential to the public safety.
Unreasonable Detention
Montana Const. Art. Ill, Sec. 17. No person shall be imprisoned
for the purpose of securing his testimony in any criminal pro-
ceeding longer than may be necessary in order to take his
deposition. If he can give security for his appearance at the
time of trial, he shall be discharged upon giving the same; if
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SELECTED RIGHTS PROVISIONS
he cannot give security, his deposition shall be taken in the
manner prescribed by law, and in the presence of the accused
and his counsel, or without their presence, if they shall
fail to attend the examination after reasonable notice of the
time and place thereof. Any deposition authorized by this
section may be received as evidence on the trial, if the wit-
ness shall be dead or absent from the state.
Missouri Const. Art. I, Sec. 18(b). Upon a hearing and
finding by the circuit court in any case wherein the accused
is charged with a felony, that it is necessary to take the
deposition of any witness within the state, other than defen-
dant and spouse, in order to preserve the testimony, and on
condition that the court make such orders as will fully pro-
tect the rights of personal confrontation and cross-examina-
tion of the witness by defendant, the state may take the
deposition of such witness and either party may use the same
at the trial, as in civil cases, provided there has been sub-
stantial compliance with such orders. The reasonable personal
and traveling expenses of defendant and his counsel shall be
paid by the state or county as provided by law.
Arkansas Const. Art. II, Sec. 9. Excessive bail shall not be
required; nor shall excessive fines be imposed; nor shall
cruel or unusual punishment be inflicted; nor witnesses be
unreasonably detained.
Bail
Montana Const. Art. Ill, Sec. 19. All persons shall be bail-
able by sufficient sureties, except for capital offenses,
when the proof is evident or the presumption great.
Florida Const. Art. I, Sec. 14. Until adjudged guilty, every
person charged with a crime or violation of municipal or
county ordinance shall be entitled to release on reasonable
bail with sufficient surety unless charged with a capital of-
fense or an offense punishable by life imprisonment and the
proof of guilt is evident or the presumption is great.
Oregon Const. Art. I, Sec. 14. Offences (sic), except murder,
and treason, shall be bailable by sufficient sureties. Murder
or treason, shall not be bailable, when the proof is evident,
or the presumption strong. -
Georgia Const. Art. I, Para. VII, IX. Banishment and whipping
as punishment for crime. Neither banishment beyond the limits
of the State, nor whipping, as a punishment for crime, shall
be allowed.
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SELECTED RIGHTS PROVISIONS
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted; nor
shall any person be abused in being arrested, while under
arrest, or in prison.
Florida Const. Art. I, Sec. 17. Excessive fines, cruel or
unusual punishment, attainder, forfeiture of estate, in-
definite imprisonment, and unreasonable detention of
witnesses are forbidden.
Trial By Jury in Civil Cases
Montana Const. Art. Ill, Sec. 23. The right of trial by
jury shall be secured to all, and remain inviolate, but in
all civil cases and in all criminal cases not amounting to
felony, upon default of appearance, or by consent of the
parties expressed in such manner as the law may prescribe,
a trial by jury may be waived, or a trial had by any less
number of jurors than the number provided by law. A jury
in a justice's court, both in civil cases and in cases of
criminal misdemeanor, shall consist of not more than six
persons. In all civil actions and in all criminal cases
not amounting to felony, two- thirds in number of the jury
may render a verdict, and such verdict so rendered shall
have the same force and effect as if all such jury con-
curred therein.
New Hampshire Const. Part First, Art. 20. In all contro-
versies concerning property--and in all suits between two
or more persons, except in cases in which it has been here-
tofore otherwise used and practiced, and except in cases
in which the value in controversy does not exceed five
hundred dollars, and title of real estate is not concerned
the parties have a right to a trial by jury and this method
of procedure shall be held sacred, unless, in cases arising
on the high seas and such as relates to mariners' wages the
legislature shall think it necessary hereafter to alter it.
In all civil cases the right of Trial by Jury shall remain
inviolate . -
North Carolina Const. Art. I, Sec. 25. Right of jury trial
in civil cases. In all controversies at law respecting
property, the ancient mode of trial by jury is one of the
best securities of the rights of the people, and shall re-
main sacred and inviolable.
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SELECTED RIGHTS PROVISIONS
New Hampshire Const. Part First, Art. 21. In order to reap
the fullest advantage of the inestimable privilege of the
trial by jury, great care ought to be taken, that none but
qualified persons should be appointed to serve; and such
ought to be fully compensated for their travel, time, and
attendance .
Principles of Penal Sanction
Montana Const. Art. Ill, Sec. 24. Laws for the punishment
of crime shall be founded on the principles of reformation
and prevention, but this shall not affect the power of the
legislative assembly to provide for punishing offenses by
death.
New Hampshire Const. Part First, Art. 18. All penalties
ought to be proportioned to the nature of the offense. No
wise legislature will affix the same punishment to the crimes
of theft, forgery, and the like, which they do to those of
murder and treason. Where the same undistinguishing severity
is exerted against all offenses, the people are led to forget
the real distinction in the crimes themselves, and to commit
the most flagrant with as little compunction as they do the
lightest offenses. For the same reason a multitude of san-
guinary laws is both impolitic and unjust. The true design
of all punishments being to reform, not to exterminate
mankind.
Alaska Const. Art. I, Sec. 12. Excessive bail shall not be
required, nor excessive fines imposed nor cruel and unusual
punishments inflicted. Penal administration shall be based
on the principle of reformation and upon the need for pro-
tecting the public.
Oregon Const. Art. I, Sec. 15. Laws for the punishment of
crime shall be founded on the principles of reformation,
and not of vindictive justice. -
Tennessee Const. Art. I, Sec. 13. That no person arrested
and confined in jail shall be treated with unnecessary rigor.
Oregon Const. Art. I, Sec. 13. No person arrested, or con-
fined in jail, shall be treated with unnecessary rigor. -
Rhode Island Const. Art. I, Sec. 14. Every man being pre-
sumed innocent, until he is pronounced guilty by the law, no
act of severity which is not necessary to secure an accused
person shall be permitted.
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SELECTED RIGHTS PROVISIONS
Wyoming Const. Art. I, Sec. 15, 16. The penal code shall be
framed on the humane principles of reformation and prevention,
No person arrested and confined in jail shall be treated with
unnecessary rigor. The erection of safe and comfortable pri-
sons, and inspection of prisons, and the humane treatment of
prisoners shall be provided for.
Tennessee Const. Art. I, Sec. 32. That the erection of safe
and comfortable prisons, the inspection of prisons, and the
humane treatment of prisoners, shall be provided for.
Cruel and Unusual Punishments
Montana Const. Art. HI/ Sec. 20. Excessive bail shall not
be required, or excessive fines imposed, or cruel and unusual
punishments inflicted.
Puerto Rico Const. Art. II, Sec. 12. Neither slavery nor in-
voluntary servitude shall exist except in the latter case as
a punishment for crime after the accused has been duly con-
victed. Cruel and unusual punishments shall not be inflicted,
Suspension of civil rights including the right to vote shall
cease upon service of the term of imprisonment imposed.
No ex post facto law or bill of attainder shall be passed.
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SELECTED RIGHTS PROVISIONS
PRIVACY
Search and Seizure
Montana Const. Art, III, Sec. 7. The people shall be secure in
their persons, papers, homes, and effects, from unreasonable
searches and seizures, and no warrant to search any place or
seize any person or thing shall issue without describing the
place to be searched, or the person or thing to be seized,
nor without probable cause, supported by oath or affirmation,
reduced to writing.
Florida Const. Art. I, Sec. 12. The right of the people to be
secure in their persons, houses, papers and effects against
unreasonable searches and seizures, and against the unreasonable
interception of private communications by any means, shall not
be violated. No warrant shall be issued except upon probable
cause, supported by affidavit, particularly describing the place
or places to be searched, the person or persons, thing or things
to be seized, the communication to be intercepted, and the
nature of evidence to be obtained. Articles or information ob-
tained in violation of this right shall not be admissible in
evidence.
Missouri Const. Art. I , Sec. 15. That the people shall be secure
in their persons, papers, homes and effects, from unreasonable
searches and seizures; and no warrant to search any place,
or seize any person or thing, shall issue without describing
the place to be searched, or the person or thing to be seized,
or nearly as may be; nor without probable cause, supported by
written oath or affirmation.
Puerto Rico Const. Art. II, Sec. 10. The right of the people
to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated.
Wire-tapping is prohibited.
No warrant for arrest or search and seizure shall issue except
by judicial authority and only upon probable cause supported
by oath or affirmation, and particularly describing the place
to be searched and the persons to be arrested or the things to
be seized.
Evidence obtained in violation of this section shall be in-
admissible in the courts.
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SELECTED RIGHTS PROVISIONS
Vermont Const. Chap I, Art. 11. That the people have a right
to hold themselves, their houses, papers, and possessions,
free from search or seizure; and therefore warrants, without
oath or affirmation first made, affording sufficient foundation
for them, and whereby any officer or messenger may be commanded
or required to search suspected places, or to seize any person
or persons, his, her or their property, not particularly de-
scribed, are contrary to that right, and ought not to be granted,
Illinois Const. Art« I , Sec. 6. The people shall have the right
to be secure in their persons, houses, papers and other pos-
sessions against unreasonable searches, seizures, invasions of
privacy or interceptions of communications by eavesdropping
devices or other means. No warrant shall issue without probable
cause, supported by affidavit particularly describing the place
to be searched and the persons or things to be seized.
Washington Const. Art. I, Sec. 7. No person shall be dis-
turbed in his private affairs, or his home invaded, without
authority of law.
Hawaii Const. Art. I, Sec. 5. The right of the people to be
secure in their persons, houses, papers and effects against
unreasonable searches, seizures, and invasions of privacy
shall not be violated; and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and par-
ticularly describing the place to be searched and the persons
or things to be seized or the communications sought to be
intercepted.
Maryland Const. Art. 26. That all warrants, without oath or
affirmation, to search suspected places, or to seize any
person or property, are grievous and oppressive; and all
general v/arrants to search suspected places, or to apprehend
suspected persons, without naming or describing the place,
or the person in special, are illegal, and ought not to be
granted.
-405-
SLLECTLD RIGHTS PROVISIONS
MISCELLANEOUS PROVISIONS
Eminent Domain
Montana Const. Art. Ill, Sec. 14, 15. Private property
shall not be taken or damaged for public use v/ithout just
compensation having been first made to or paid into court
for the owner .
The use of all water now appropriated, or that may hereafter
be appropriated for sale, rental, distribution, or other
beneficial use, and the right of v/ay over the lands of others,
for all ditches, drains, flumes, canals, and aqueducts, nec-
essarily used in connection therewith, as well as the sites
for reservoirs necessary for collecting and storing the sane,
shall be held to be a public use. Private roads may be opened
in the manner to be prescribed by law, but in every case the
necessity of the road, and the amount of all dam.age to be
sustained by the opening thereof, shall be first determined
by a jury, and such amount, together with the expenses of the
proceeding, shall be paid by the person to be benefited.
Oklahoma Const. Art. II, Sec. 24. Private property shall
not be taken or damaged for public use without just compen-
sation. Such compensation, irrespective of any benefit from
any improvements proposed, shall be ascertained by a board of
commissioners of not less than three freeholders, in such
manner as may be prescribed by law. The commissioners shall
not be appointed by any judge or court without reasonable
notice having been served upon all parties in interest. The
commissioners shall be selected from the regular jury list of
names prepared and made as the Legislature shall provide. Any
party aggrieved shall have the right of appeal, without bond,
and trial by jury in a court of record. Until the compensation
shall be paid to the owner, or into court for the ov/ner , the
property shall not be disturbed, or the proprietary rights of
the owner divested. When possession is taken of property
condemned for any public use, the owner shall be entitled to
the immediate receipt of the compensation awarded, without
prejudice to the right of either party to prosecute further
proceedings for the judicial determination of the sufficiency
or insufficiency of such compensation. The fee of land taken
by common carriers for right of way, without the consent of
the owner, shall remain in such owner subject only to the use
for which it is taken. In all cases of condemnation of pri-
vate property for public or private use, the determination of
the character of the use shall be a judicial question.
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SELECTED RIGHTS PROVISIONS
Arizona Const. Art. II, Sec. 17. Private property shall
not be taken for private use, except for private ways of
necessity, and for drains, flumes, or ditches, on or across
the lands of others for mining, agricultural, domestic, or
sanitary purposes. No private property shall be taken or
damaged for public or private use without just compensation
having first been made, paid into court for the owner, se-
cured by bond as may be fixed by the court, or paid into the
state treasury for the owner on such terms and conditions as
the legislature may provide, and no right of way shall be
appropriated to the use of any corporation other than munic-
ipal, until full compensation therefor be first made in money,
or ascertained and paid into court for the owner, irrespective
of any benefit from any improvement proposed by such corpor-
ation, which compensation shall be ascertained by a jury,
unless a jury be waived as in other civil cases in courts of
record, in the manner prescribed by law. V7henever an attempt
is made to take private property for a use alleged to be
public, the question whether the contemplated use be really
public shall be a judicial question, and determined as such
without regard to any legislative assertion that the use is
public .
Missouri Const. Art. I, Sec. 26, 27 and 28. That private
property shall not be taken or damaged for public use with-
out just compensation. Such compensation shall be ascertained
by a jury or board of commissioners of not less than three
freeholders, in such manner as may be provided by law; and
until the same shall be paid to the owner, or into court for
the owner, the property shall not be disturbed or the propri-
etary rights of the owner therein divested. The fee of land
taken for railroad purposes without consent of the owner
thereof shall remain in such owner subject to the use for which
it is taken.
That in such manner and under such limitations as may be
provided by law, the state, or any county or city may acquire
by eminent domain such property, or rights in property, in
excess of that actually to be occupied by the public improve-
ment or used in connection therewith, as may be reasonably
necessary to effectuate the purposes intended, and may be
vested with the fee simple title thereto, or the control of
the use thereof, and may sell such excess property with such
restrictions as shall be appropriate to preserve the improve-
ments made.
That private property shall not be taken for private use with
or without compensation, unless by consent of the owner, except
for private ways of necessity, and except for drains and
-407-
SELECTED RIGHTS PROVISIONS
ditches across the lands of others for agricultural and sanity
purposes, in the manner prescribed by law; and that v.'hen an
attempt is made to take private property for a use alleged to
be public, the question whether the contemplated use be public
shall be judicially determined without regard to any legis-
lative declaration that the use is public.
Mississippi Const. Art. Ill, Sec. 17. Private property shall
not be taken or damaged for public use, except on due compen-
sation being first made to the owner or owners thereof, in a
manner to be prescribed by law; and whenever an attempt is
made to take private property for a use alleged to be public,
the question whether the contemplated use be public shall be
a judicial question, and, as such, determ.ined without regard
to legislative assertion that the use is public.
Puerto Rico Const. Art. II, Sec. 9. Private property shall
not be taken or damaged for public use except upon payment of
just compensation and in the manner provided by law. No law
shall be enacted authorizing condemnation of printing presses,
machinery or material devoted to publications of any kind.
The building in which these objects are located may be con-
demned only after a judicial finding of public convenience
and necessity pursuant to procedure that shall be provided
by law, and may be taken before such a judicial finding only
when there is placed at the disposition of the publication
and adequate site in which it can be installed and continue
to operate for a reasonable time.
Minnesota Const. Art. I, Sec. 13. Private property shall
not be taken, destroyed or damaged for public use without
just compensation therefor, first paid or secured.
Hawaii Const. Art. I, Sec. 18. Private property shall not
be taken or damaged for public use without just compensation.
Vermont Const. Chap. I., Art. 2. That private property
ought to be subservient to public uses when necessity re-
quires it, nevertheless, whenever any person's property is
taken for the use of the public, the owner ought to receive
an equivalent in money.
Colorado Const. Art. II, Sec. 15. Private property shall not
be taken or damaged, for public or private use, without just
compensation. Such compensation shall be ascertained by a
board of commissioners, of not less than three freeholders,
or by a jury, when required by the owner of the property, in
such manner as may be prescribed by law, and until the same
shall be paid to the owner, or into court for the ov/ner, the
property shall not be needlessly disturbed, or the proprietary
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SELECTED RIGHTS PROVISIONS
rights of the owner therein divested; and whenever an attempt
is made to take private property for a use alleged to be
public, the question whether the contemplated use be really
public shall be a judicial question, and determined as such
without regard to any legislative assertion that the use is
public .
Oklahoma Const. Art. II, Sec. 23. No private property shall
be taken or damaged for private use, with or without compen-
sation, unless by consent of the owner, except for private
ways of necessity, or for drains and ditches across lands of
others for agricultural, mining, or sanitary purposes, in
such manner as may be prescribed by law.
Arkansas Const. Art. II, Sec. 22. The right of property is
before and higher than any constitutional sanction; and pri-
vate property shall not be taken, appropriated or damaged for
public use, without just compensation therefor.
Rights of Aliens
Montana Const. Art. Ill, Sec. 25. Aliens and denizens shall
have the same right as citizens to acquire, purchase, possess,
enjoy, convey, transmit, and inherit mines and mining property,
and milling, reduction, concentrating, and other works, and
real property necessary for or connected with the business of
mining and treating ores and minerals: provided, that nothing
herein contained shall be construed to infringe upon the
authority of the United States to provide for the sale or
disposition of its mineral and other public lands.
Arkansas Const. Art. II, Sec. 20. No distinction shall
ever be made by law, between resident aliens and citizens,
in regard to the possession, enjoyment, or descent of property.
New Mexico Const. Art. II, Sec. 22. Unless otherwise pro-
vided by law no alien, ineligible to citizenship under the
laws of the United States, or corporation, copartnership or
association, a majority of the stock or interest in which is
owned or held by such aliens, shall acquire title, leasehold
or other interest in or to real estate in New Mexico.
Kansas Const. Art. I, Sec. 17. No distinction shall ever
be made between citizens of the state of Kansas and the
citizens of other states and territories of the United States
in reference to the purchase, enjoyment or descent of property.
The rights of aliens in reference to the purchase, enjoyment
or descent of property may be regulated by law.
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SELECTED RIGHTS PROVISIONS
Iowa Const. Art. I^ Sec. 22. Foreigners who are, or may
hereafter become residents of this State, shall enjoy the
same rights in respect to the possession, enjoyment and de-
scent of property, as native born citizens.
Involuntary Servitude
Montana Const. Art. Ill, Sec. 28. There shall never be in
this state either slavery or involuntary servitude, except as
a punishment for crime, whereof the party shall have been
duly convicted.
Other states which have involuntary servitude provisions use
nearly identical wording.
Freedom from Discrimination
Illinois Const. Art. I, Sec. 17, 18 and 19. All persons
shall have the right to be free from discrimination on the
basis of race, color, creed, national ancestry and sex in
the hiring and promotion practices of any employer or in the
sale or rental of property.
These rights are enforceable without action by the General
Assembly, but the General Assembly by law may establish
reasonable exemptions relating to these rights and provide
additional remedies for their violation.
The equal protection of the laws shall not be denied or
abridged on account of sex by the State or its units of local
government and school districts.
All persons with a physical or mental handicap shall be free
from discrimination in the sale or rental of property and
shall be free from discrimination unrelated to ability in
the hiring and promotion practices of any employer.
Puerto Rico Const. Art. II, Sec. 1. The dignity of the
human being is inviolable. All men are equal before the law.
No discrimination shall be made on account of race, color,
sex, birth, social origin or condition, or political or re-
ligious ideas. Both the laws and the system of public educa-
tion shall embody these principles of essential human equality.
-410-
SELECTED RIGHTS PROVISIONS
New Jersey Const. Art. I^ Sec. 5. No person shall be denied
the enjoyment of any civil or military right, nor be discrim-
inated against in the exercise of any civil or military right,
nor be segregated in the militia or in the public schools be-
cause of religious principles, race, color, ancestry or national
origin ,
Michigan Const. Art. I, Sec. 2. No person shall be denied
the equal protection of the laws; nor shall any person be
denied the enjoyment of his civil or political rights or be
discriminated against in the exercise thereof because of
religion, race, color or national origin. The legislature
shall implement this section by appropriate legislation.
Pennsylvania Const. Art. I, Sec. 26. Neither the Common-
wealth nor any political subdivision thereof shall deny to
any person the enjoyment of any civil right, nor discriminate
against any person in the exercise of any civil right.
Alaska Const. Art. I, Sec. 3. No person is to be denied the
enjoyment of any civil or political right because of race,
color, creed, or national origin. The legislature shall im-
pement this section.
Connecticut Const. Art. I, Sec. 20. No person shall be de-
nied the equal protection of the law nor be subjected to
segregation or discrimination in the exercise or enjoyment of
his civil or political rights because of religion, race, color,
ancestry or national origin.
Hawaii Const. Art. I, Sec. 12. No person shall be disqual-
ified to serve as a juror because of sex.
North Carolina Const. Art. I, Sec. 26. No person shall be
excluded from jury service on account of sex, race, color,
religion, or national origin.
Debt Imprisonment
Montana Const. Art. Ill, Sec. 12. No person shall be im-
prisoned for debt except in the manner prescribed by law,
upon refusal to deliver up his estate for the benefit of
his creditors, or in cases of tort, where there is strong
presumption of fraud.
South Dakota Const. Art. VI, Sec. 15. No person shall be
imprisoned for debt arising out of or founded upon a contract.
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SELECTED RIGHTS PROVISIONS
New Jersey Const. Art. I, Sec. 13. No person shall be im-
prisoned for debt in any action, or on any judgment found
upon contract, unless in cases of fraud; nor shall any person
be imprisoned for a militia fine in time of peace.
Illinois Const. Art. I, Sec. 14. No person shall be impris-
oned for debt unless he refuses to deliver up his estate for
the benefit of his creditors as provided by law or unless
there is a strong presumption of fraud. No person shall be
imprisoned for failure to pay a fine in a criminal case unless
he has been afforded adequate time to make payment, in in-
stallments if necessary, and has willfully failed to make
payment.
Alabama Const. Art. I, Sec. 20. That no person shall be
imprisoned for debt.
Minnesota Const. Art. I, Sec. 12. No person shall be im-
prisoned for debt in this State, but this shall not prevent
the legislature from providing for imprisonment, or holding
to bail, persons charged with fraud in contracting said debt.
A reasonable amount of property shall be exempt from seizure
or sale for the payment of any debt or liability. The amount
of such exemption shall be determined by law. [Provided, how-
ever, that all property so exempted shall be liable to seizure
and sale for any debts incurred to any person for work done or
materials furnished in the construction, repair or improvement
of the same, and provided further, that such liability to
seizure and sale shall also extend to all real property for
any debt incurred to any laborer or servant for labor or
service performed.]
Nevada Const. Art. I, Sec. 14. The privilege of the debtor
to enjoy the necessary comforts of life shall be recognized
by wholesome laws, exempting a reasonable amount of property
from seizure or sale for payment of any debts or liabilities
hereafter contracted; And there shall be no imprisonment for
debt, except in cases of fraud, libel, or slander, and no
person shall be imprisioned [imprisoned] for a Militia fine
in time of Peace.
Puerto Rico Const. Art. II, Sec. 7. . . .A minimum amount
of property and possessions shall be exempt from attachment
as provided by law.
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SELECTED RIGHTS PROVISIONS
Ex Post Facto Laws and Bills of Attainder
Montana Const. Art. Ill, Sec. 11. No ex post facto law nor
law impairing the obligation of contracts, or making any
irrevocable grant of special privileges, franchises, or im-
munities, shall be passed by the legislative assembly.
Kansas Const. Sec. 20. No person shall be attainted of
treason or felony by the General Assembly, and no attainder
shall work corruption of blood, nor except during the life
of the offender, forfeiture of estate to the Commonwealth.
South Dakota Const. Art. VI, Sec. 12. No ex post facto law,
or law impairing the obligation of contracts or making any
irrevocable grant of privilege, franchise or immunity shall
be passed.
Idaho Const. Art. I, Sec. 16. No bill of attainder, ex
post facto law, or law impairing the obligation of contracts
shall ever be passed.
Treason and Descent of Estates
Montana Const. Art. Ill, Sec. 9. Treason against the state
shall consist only in levying war against it, or in adhering
to its enemies, giving them aid and comfort; no person shall
be convicted of treason except on the testimony of two wit-
nesses to the same overt act, or on his confession in open
court; no person shall be attainted of treason or felony by
the legislative assembly; no conviction shall work corruption
of blood or forfeiture of estate; the estates of persons who
may destroy their own lives shall descend or vest as in cases
of natural death.
Oregon Const. Art. I, Sec. 25. No conviction shall work
corruption of blood, or forfeiture of estate.
Kentucky Const. Sec. 21. The estate of such persons as shall
destroy their own lives shall descend or vest as in cases of
natural death; and if any person shall be killed by casualty,
there shall be no forfeiture by reason thereof.
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SELECTED RIGHTS PROVISIONS
Unenumerated Rights--Powers of Government
Montana Const. Art. Ill, Sec. 30. The enumeration in this
constitution of certain rights shall not be construed to deny,
impair, or disparage others retained by the people.
Florida Const. Art. I, Sec. 1. All political power is in-
herent in the people. The enunciation herein of certain
rights shall not be construed to deny or impair others re-
tained by the people.
Kansas Const. Sec. 20. This enumeration of rights shall not
be construed to impair or deny others retained by the people;
and all powers not herein delegated remain with the people.
Puerto Rico Const. Art. II, Sec. 19. The foregoing enumera-
tion of rights shall not be construed restrictively nor does
it contemplate the exclusion of other rights not especif ically
mentioned which belong to the people in a democracy. The
power of the Legislative Assembly to enact laws for the pro-
tection of the life, health and general welfare of the people
shall likewise not be construed restrictively.
Illinois Const. Art. II, Sec. 2. The enumeration in this
Constitution of specified powers and functions shall not be
construed as a limitation of powers of state government.
Construction
Montana Const. Art. Ill, Sec. 29. The provisions of this
constitution are mandatory and prohibitory, unless by express
words they are declared to be otherwise.
Maryland Const. Art. 44. That the provisions of the Consti-
tution of the United States, and of this State, apply, as well
in time of war, as in time of peace; and any departure there-
from, or violation thereof, under the plea of necessity, or
any other plea, is subversive of good Government, and tends
to anarchy and despotism.
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SELECTED RIGHTS PROVISIONS
PROVISIONS NOT FOUND IN MONTANA DECLARATION OF RIGHTS
Right to Education
Puerto Rico Const. Art. II, Sec. 5. Every person has the right
to an education which shall be directed to the full development
of the human personality and to the strengthening of respect
for human rights and fundamental freedoms. There shall be a
system of free and wholly non-sectarian public education.
Instruction in the elementary and secondary schools shall be
free and shall be compulsory in the elementary schools to the
extent permitted by the facilities of the state. No public
property or public funds shall be used for the support of
schools or educational institutions other than those of the
state. Nothing contained in this provision shall prevent the
state from furnishing to and child non-educational services
established by law for the protection or welfare of children.
Virginia Const. Art. I, Sec. 15. . . .That free government
rests, as does all progress, upon the broadest possible
diffusion of knowledge and that the Commonwealth should avail
itself of those talents which nature has sown so liberally
among its people by assuring the opportunity for their fullest
development by an effective system of education throughout the
Commonwealth .
North Carolina Const. Art. I, Sec. 15. The people have a right
to the privilege of education, and it is the duty of the State
to guard and maintain that right.
Wyoming Const. Art. I, Sec. 23. The right of the citizens to
opportunities for education should have practical recognition.
The legislature shall suitably encourage means and agencies
calculated to advance the sciences and liberal arts.
Oaths
West Virginia Const. Art. Ill, Sec. 11. Political tests,
requiring persons, as a prerequisite to the enjoyment of
their civil and political rights, to purge themselves by
their own oaths, of past alleged offences, are repugnant to
the principles of free government, and are cruel and
oppressive. No religious or political test oath shall be re-
quired as a prerequisite or qualification to vote, serve as
a juror, sue, plead, appeal, or pursue any profession or
-415-
SELECTED RIGHTS PROVISIONS
employment. Nor shall any person be deprived by law, of any
right, or privilege, because of any act done prior to the
passage of such law.
Tennessee Const. Art. I, Sec. 4. That no political or religious
test, other than an oath to support the Constitution of the
United States and of this State, shall ever be required as a
qualification to any office or public trust under this state.
Costs of Legal Action
Georgia Const. Art. I, Para. X. No person shall be compelled
to pay costs except after conviction on final trial.
Access to Water
Rhode Island Const. Art. I, Sec. 17. The people shall continue
to enjoy and freely exercise all the rights of fishery, and the
privileges of the shore, to which they have been heretofore
entitled under the charter and useages of this state. But no
new right is intended to be granted, nor any existing right
impaired, by this declaration.
Alabama Const. Art. I, Sec. 24. That all navigable waters
shall remain forever public highways, free to the citizens of
the state and the United States, without tax, impost, or toll;
and that no tax, toll, impost, or wharfage shall be demanded
or received from the owner of any merchandise or commodity
for the use of the shores or any wharf erected on the shores,
or in or over the waters of any navigable streams, unless the
same be expressly authorized by law.
Labor Rights
Wyoming Const. Art. I, Sec. 22. The rights of labor shall have
just protection through laws calculated to secure to the laborer
proper rewards for his service and to promote the industrial
welfare of the state.
-416-
SELECTED RIGHTS PROVISIONS
Missouri Const. Art. I, Sec. 29. That employees shall have the
right to organize and to bargain collectively through repre-
sentatives of their own choosing.
New Jersey Const. Art. I, Sec. 19. Persons in private em-
ployment shall have the right to organize and bargain collectively.
Persons in public employment shall have the right co organize,
present to and make known to the State, or any of its political
subdivisions or agencies, their grievances and proposals through
representatives of their own choosing.
Puerto Rico Const. Art. II, Sec. 16, 17, and 18. The right of
every employee to choose his occupation freely and to resign
therefrom is recognized, as is his right to equal pay for equal
work, to a reasonable minimum salary, to protection against
risks to his health or person in his work or employment, and
to an ordinary workday which shall not exceed eight hours.
An employee may work in excess of this daily limit only if he
is paid extra compensation as provided by law, at a rate never
less than one and one-half times the regular rate at which he
is employed.
Persons employed by private business, enterprises and individual
employers and by agencies or instrumentalities of the govern-
ment operating as private business or enterprises, shall have
the right to organize and to bargain collectively with their
employers through representatives of their own free choosing
in order to promote their welfare.
In order to assure their right to organize and to bargain
collectively, persons employed by private business, enter-
prises and individual employers and by agencies or instru-
mentalities of the government operating as private businesses
or enterprises, in their direct relations with their own
employers shall have the right to strike, to picket and to
engage in other legal concerted activities.
Nothing herein contained shall impair the authority of the
Legislative Assembly to enact laws to deal with grave
emergencies that clearly imperil the public health or safety
or essential public services.
Special Sentencing Tribunals
Pennsylvania Const. Art. I, Sec. 15. No commission shall issue
creating special temporary criminal tribunals to try particular
individuals or particular classes of cases.
-417-
SELECTED RIGHTS PROVISIONS
Missouri Const. Art. I, Sec. 31. Fines or imprisonments
fixed by administrative agencies. — That no law shall delegate
to any commission, bureau, board or other administrative agency
authority to make any rule fixing a fine or imprisonment as
punishment for its violation.
Texas Const. Art. I, Sec. 15-a. No person shall be committed
as a person of unsound mind except on competent medical or
psychiatric testimony. The Legislature may enact all laws
necessary to provide for the trial, adjudication of insanity
and commitment of persons of unsound mind and to provide for
a method of appeal from judgments rendered in such cases.
Such laws may provide for a waiver of trial by jury, in cases
where the person under inquiry has not been charged with the
commission of a criminal offense, by the concurrence of the
person under inquiry, or his next of kin, and an attorney ad
litem appointed by a judge of either the County or Probate
Court of the county where the trial is being held, and shall
provide for a method of service of notice of such trial upon
the person under inquiry and of his right to demand a trial
by jury.
Rights of Children
Puerto Rico Const. Art. II, Sec. 15. The employment of children
less than fourteen years of age in any occupation which is
prejudicial to their health or morals or which places them in
jeopardy of life or limbs is prohibited.
;
No child less than sixteen years of age shall be kept in
custody in a jail or penitentiary.
Florida Const. Art. I, Sec. 15. No person shall be tried for
capital crime without presentment or indictment by a grand
jury, or for other felony without such presentment or in-
dictment or an information under oath filed by the prosecuting
officer of the court, except persons on active duty in the
militia when tried by courts martial.
When authorized by law, a child as therein defined may be
charged with a violation of law as an act of delinquency in-
stead of crime and tried without a jury or other requirements
applicable to criminal cases. Any child so charged shall, upon
demand made as provided by law before a trial in a juvenile
proceeding, be tried in an appropriate court as an adult. A
child found delinquent shall be disciplined as provided by law.
-418-
SELECTED RIGHTS PROVISIONS
State Lands
Arkansas Const. Art. II, Sec. 28. All lands in this State are
declared to be allodial; and feudal tenures of every description,
with all their incidents, are prohibited.
Minnesota Const. Art. I, Sec. 15. All lands within the State
are declared to be allodial, and feudal tenures of every
description, with all their incidents, are prohibited. Leases
and grants of agricultural lands for a longer period than twenty-
one years hereafter made, in which shall be reserved any rent
or service of any kind, shall be void.
Iowa Const. Art. I, Sec. 24. No lease or grant of agricultural
lands, reserving any rent, or service of any kind, shall be
valid for a longer period, than twenty years.
Miscellaneous
Oklahoma Const. Art. II, Sec. 32. Perpetuities and monopolies are
contrary to the genius of a free government, and shall never be
allowed, nor shall the law of primogeniture or entailments ever
be in force in this State.
North Carolina Const. Art. I, Sec. 11. As political rights and
privileges are not dependent upon or modified by property, no
property qualification shall affect the right to vote or hold
office.
Oregon Const. Art. I, Sec. 30. No law shall be passed pro-
hibiting emigration from the State.
New Hampshire Const. Part First, Art. 35,39. It is essential
to the preservation of the rights of every individual, his
life, liberty, property, and character, that there be an im-
partial interpretation of the laws, and administration of
justice. It is the right of every citizen to be tried by
judges as impartial as the lot of humanity will admit. It
is therefore not only the best policy, but for the security
of the rights of the people, that the judges of the supreme
judicial court should hold their offices so long as they
behave well; subject, however, to such limitations, on
account of age, as may be provided by the constitution of the
state; and that they should have honorable salaries, ascer-
tained and established by standing laws.
No law changing the charter or form of government of a
-419-
SELECTED RIGHTS PROVISIONS
particular city or town shall be enacted by the legislature
except to become effective upon the approval of the voters
of such city or town upon a referendum to be provided for
in said law.
The legislature may by general law authorize cities and towns
to adopt or amend their charters or forms of government in
any way whicn is not in conflict with general law, provided
that such charters or amendments shall become effective only
upon the approval of the voters of each such city or town on
a referendum.
Nevada Const. Art. I, Sec. 13. Representation shall be
apportioned according to population.
Washington Const. Art. I, Sec. 33, 34. Every elective public
officer in the state of Washington except [except] judges of
courts of record is subject to recall and discharge by the
legal voters of the state, or of the political subdivision
of the state, from which he was elected whenever a petition
demanding his recall, reciting that such officer has
committed some act or acts of malfeasance or misfeasance
while in office, or who has violated his oath of office,
stating the matters complained of, signed by the percentages
of the qualified electors thereof, hereinafter provided, the
percentage required to be computed from the total number of
votes cast for all candidates for his said office to which he
was elected at the preceding election, is filed with the
officer with whom a petition for nomination, or certificate
for nomination, to such office must be filed under the laws
of this state, and the same officer shall call a special
election, as provided by the general election laws of this
state, and the result determined as therein provided.
The legislature shall pass the necessary laws to carry out
the provisions of section thirty-three (33) of this article,
and to facilitate its operation and effect without delay:
Provided, That the authority hereby conferred upon the legis-
lature shall not be construed to grant to the legislature any
exclusive power of lawmaking nor in any way limit the initiative
and referendum powers reserved by the people. The percentages
required shall be, state officers, other than judges, senators
and representatives, city officers of cities of the first class,
school district boards in cities of the first class; county
officers of counties of the first, second and third classes,
twenty-five per cent. Officers of all other political sub-
divisions, cities, towns, townships, precincts and school
districts not herein mentioned, and state senators and
representatives, thirty-five per cent.
-420-
SELECTED RIGHTS PROVISIONS
Georgia Constitution. Art. II, Para. V. Lobbying; penalties.
Lobbying is declared to be a crime, and the General Assembly
shall enforce the provision by suitable penalties.
Minnesota Const. Art. I, Sec. 18. Any person may sell or
peddle the products of the farm or garden occupied and cul-
tivated by him without obtaining a license therefor.
-421-
-422-
SELECTED BIBLIOGRAPHY
GENERAL WORKS
Arendt, Hannah. On Revolution. New York: Viking Press, 1963.
Asch, Sidney H. Civil Rights and Responsibilities Under the
Constitution. New York: Arco, 1968.
Brant, Irving. The Bill of Rights: Its Origin and Meaning.
New York: Bobbs-Merrill Co., Inc., 1965.
Countryman, Vern L. "Why a State Bill of Rights?" Washington
Law Review 45 (1970) : 455.
Custard, Leila Roberta. Bills of Rights in American History.
Los Angeles: University of Southern California Press, 1942.
Dorsen, Norman, ed. The Rights of Americans. New York:
Random House, 1970.
Douglas, William 0. The Right of the People. Garden City:
Doubleday and Co., 1958.
Emerson, Thomas. Political and Civil Rights in the United States.
Boston: Little, Brown and Co., 1967.
Fraenkel, Osmond K. Our Civil Liberties. New York: Viking
Press, 1944.
Hart, James P. "The Bill of Rights: Safeguard of Individual
Liberty." Texas Law Review 35 (1957): 924.
Lieberman, Jethro K. Understanding Our Constitution. New York:
Walker and Co., 1967.
Loring, Emilie. "Some Procedural Rights of the Criminal Defendant
in Montana." Unpublished Master's thesis. University of Montana,
Missoula, 1963.
Lucas, J. R. The Principles of Politics. Oxford: Clarendon
Press, 1966.
Mazor, Lester. "Notes on a Bill of Rights." Utah Law Review
40 (1966) : 327.
Meiklejohn, Alexander. Political Freedom. New York: Oxford
University Press, 1965.
-423-
SELECTED BIBLIOGRAPHY
Morris, Arvcl A. "Now Horizons for a State Bill of Rights."
Washington Law Review 45 (1970): 485.
Passerin d'Entreves, Alexander. The Notion of the State.
Oxford: Clarendon Press, 1967.
Perry, Richard L. Sources of Our Liberties. Rahway : Quinn and
Boden Co. Inc., 1959.
Public Administration Service. Civil Rights and Liberties.
Staff paper prepared for the Alaska Constitutional Convention.
Chicago: 1955.
Rankin, Robert. Bill of Rights. New York: National Municipal
League, 1960.
Rutland, Robert. The Birth of the Bill of Rights. Chapel Hill:
University of North Carolina Press, 1955.
Steel, John M. "The Role of a Bill of Rights in a Modern State
Constitution." Washington Law Review 45 (1970): 453.
Strouse, Jean. Up Against the Law. New York: New American
Library, 197C.
Wood, Gordon S. The Creation of the American Republic. Chapel
Hill: University of North Carolina Press, 1969.
PRIVACY
Breckenridge, Adam Carlyle. The Right to Privacy. Lincoln:
University of Nebraska Press, 1970.
Long, Edward 7. The Intruders : The Invasion of Privacy by
Government and Industry. New York: Frederich Praeger, 1966.
Miller, A.* R. "Personal Privacy in the Computer Age." Michigan
Law Review 67 (1969) : 1091.
Rothenberg, Jerry M. The Death of Privacy. New York: Random
House, 1969.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1967.
. "Science, Privacy, and Freedom: Issues and
Proposals for the 1970's." Columbia Law Review 66 (1966): 1231.
-424-
SELECTED BIBLIOGRAPHY
ENVIRONMENTAL PROTECTION
Baldwin, Malcolm, ed. Law and the Environment. New York:
Walker and Co. , 1970.
Calvani, Terry. "Eminent Domain and the Environment." Cornell
Law Review 56 (1971) : 650.
Click, David F. and Sullivan, Peter H. Environmental Protection
Act. New Haven: Yale Legislative Services, 1971.
Cohen, Bernard S. "The Constitution, the Public Trust Doctrine,
and the Environment." Utah Law Review (1970): 388.
Carton, William A. "Ecology and the Police Power." South Dakota
Law Review 16 (1971) : 290.
Hanks, Eva H. and John L. "The Right to a Habitable Environment."
The Rights of Americans. Ed. Norman Dor sen. New York: Random
House, 1970.
nines, N. William. "Nor Any Drop to Drink: Public Regulation
of Water Quality." Iowa Law Review 52 (1966): 196.
Landau, Norman J. and Rheingold, Paul D. The Environmental Law
Handbook. New York: Ballentine, 1971.
Leaphart, Bill. "Public Trust as a Constitutional Provision in
Montana." Montana Law Review 33 (1972): 182.
Lohrmann, Robert. "The Environmental Lawsuit." Wayne Law Review
16 (1970) : 1129.
Lowry, Ritchie P. "Toward a Radical View of the Ecological Crisis."
Environmental Affairs 1 (1971) : 350.
Maechling, Charles. "The Emerging Right to a Decent Environment."
Human Rights 1 (1970): 59.
McCann, Richard. "Standing: Who Speaks for the Environment."
Montana Law Review 32 (1971) : 130.
Murphy, Earl Finbar. "The Necessity to Change Man's Traditional
View of Nature." Nebraska Law Review 48 (1969): 299
Sax, Joseph L. Defending the Environment: A Strategy for Citizen
Action. New York: Alfred A. Knopf, 1971.
Scott, Jeffrey J. "The Montana Environmental Protective Act: Where
Do We Go From Here?" Montana Business Quarterly (Summer 1971) : 38.
-425-
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