Montana Basic Necessities and Symposium

Anthony Sanders · September 2, 2022

This week’s State Con Law Case of the Week isn’t a case, but an event. In two weeks (Thurs.-Fri., September 15-16) I’ll be participating in the Montana Law Review’s 2022 Browning Symposium on Montana’s Constitution: The Next 50 Years. The event celebrates the adoption of the current Montana Constitution in 1972 and looks forward to its future. Many distinguished scholars—some of the top scholars on state constitutional law in the country—will be speaking on various topics, including Judge Jeffrey Sutton of the Sixth Circuit. If you’re unlucky enough not to live near Missoula, Montana you can watch it online. Details will be available at this link, where you’ll also be able to see the schedule once it’s ready and the full list of speakers.

Further, before the symposium starts I’ll be hosting an episode of Short Circuit Live at the University of Montana School of Law! Presenting three different Montana cases will be Montana practitioners Natasha Prinzing Jones of Boone Karlberg, P.C., Rylee Sommers-Flanagan of Upper Seven Law, and Colin Stephens of Stephens Brooke, P.C. It’s open to the public but, of course, if you’re not in Missoula you can catch it later just like any Short Circuit podcast. It’s jointly sponsored by the student chapters of the Federalist Society and the American Constitution Society. (If you’re in a quite different city, New York City, you can see a Short Circuit Live on October 26! Click here for details and to RSVP.)

                For the symposium I’ve written an essay on Montana’s Basic Necessities Clause. It is a completely unique provision of Montana’s constitution that protects the right “of pursuing life’s basic necessities.” What does that mean? Well, a 1996 Montana Supreme Court case, Wadsworth v. State, said it means the right to earn a living, and that that right was protected with strict scrutiny. Wow! Now that’s something we at IJ dream about.

Was it too good to be true? Unfortunately subsequent cases have ignored Wadsworth or dishonestly distinguished it. I write to provide the history of the clause (and its roots in George Mason’s 1776 Virginia Declaration of Rights) and suggest a path forward where the court can enforce the clause in a way that won’t lead to Wadsworth being ignored. Feel free to read a draft I’ve posted. Here’s the abstract:

Like many states Montana has a clause in its Declaration of Rights descended from George Mason’s initial draft of the Virginia Declaration of Rights of 1776. But unlike other “Lockean Natural Rights Guarantees,” as they’ve elsewhere been called, Montana’s 1972 Constitution has two unique features. One has been well recognized, the “right to a clean and healthful environment.” But the other, the subject of this Essay, has not, the right “of pursuing life’s basic necessities.”

In a twist of irony the language comes from an effort to create a positive right to subsistence. That effort was defeated at the 1972 convention and turned into a negative right to pursue subsistence, in line with the other Lockean rights that ultimately descend from the hand of Mason. This “new” right is, in fact, as old a right as any other in the Montana Constitution. It was just, through the ironic turnabout at the convention, given articulation for the first time.

The Montana Supreme Court has been inconsistent, to say the least, in protecting this right. This Essay details the origins of the right and then how the court has glimpsed the meaning and promise of the Basic Necessities Clause, but failed to give it the necessities it needs to protect the basic livelihoods of Montanans. However, a rediscovery of those first principles—of 1776 and 1972—would not be difficult for the court to do. It would lead to Montana being among the forefront of states in protecting the right of its citizens to pursue life’s basic necessities, and beyond. I suggest a method by which the court can enforce the clause which may address worries that its justices have held.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.