"Each Generation of a Free Society": The Relationship between Montana's Constitutional Convention, Individual Rights Protections, and State Constitutionalism

• Main Author: Nelson, Inga Katrin
• Format: Others
• Published: PDXScholar 2011
• Subjects: New Judicial Federalism; Constitutional Revision; Individual Rights; Constitutional law > Montana; Civil rights > Montana; Constitutions > United States > States; Montana Constitutional Convention > 1971-1972
• Online Access: https://pdxscholar.library.pdx.edu/open_access_etds/311; https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?article=1310&context=open_access_etds

In the mid-1970s, state courts began to interpret state constitutions independently of the federal constitution in a way that provided greater protection for individual rights at the state versus federal level. Scholars have generally attributed the rise of this movement, known as state constitutionalism, to the actions and scholarship of judges and point to the cause as a fear that the Burger court would rollback Warren court era protections for individual rights. In reality, the concept of state constitutionalism had been present throughout the 1950s-1970s period of state constitutional revision and was deeply influenced by concerns over the status of the federal system. Montana's 1972 Constitutional Convention illustrates the role that constitutional revision had in the subsequent adoption of state constitutionalism. In particular, the creation, adoption, and interpretation of two provisions--the privacy and dignity clauses--shows that the public was engaged in a conscious decision to go beyond the federal protections for individual rights. Montana's experience suggests that further research is needed in order for scholars to fully understand the rise and adoption of state constitutionalism.