Missoulian: Teacher, legislator tells life story of state constitution's 1972 birth

KALISPELL - Bob Brown was right there in the delivery room the day Montana's Constitution was born, was there when the lawyers spanked its newborn behind and it squealed for the very first time.

“It's always been a living, breathing document for me,” Brown said.

He's seen it through its infancy, through its growing pains, and now he'd like to introduce it - and its parents - to the people it protects.

The longtime teacher and lawmaker has embarked on a philosophical family reunion of sorts, a series of big-picture symposiums focusing on Montana's remarkably unique 1972 constitution.

To be sure, it's an academic endeavor, thoughtful and perhaps a bit rarefied - but by confronting the constitution on its own terms, far beyond the walls of ivory towers, Brown gets right at what it means to live in a land governed by the rule of law.

Some might think the constitution's not relevant to them, Brown said. Some might think it doesn't affect their lives. They would be wrong.

He proved that right out of the gate, with a paneled symposium on how the state constitution addresses public education. The document guarantees access not just to an education, he said, but to a quality education.

How we define “quality” affects our children, our economy, our tax distribution, our pocketbooks.

The second seminar also explored the constitution's role in education, specifically the requirement that public schools provide instruction in Native American culture and heritage.

You might not be an Indian, might not be a student, might not even have kids. But if you pay taxes, then this “living, breathing document” just might be breathing down your neck.

The third symposium was a post-mortem, an analysis of the latest legislative special session and how well it succeeded, or failed, in meeting the constitution's school funding requirements.

“Now,” Brown said, “we're switching gears.”

Now, he's untangling another constitutional knot - Montanans' fundamental right to a “clean and healthful environment.”

“We're the only state in the nation with a constitutional provision like that,” Brown said.

The seminar - titled “The Montana Constitution: Progressive Spirit of the Rocky Mountain West” - focuses on the unique guarantee to a clean and healthful environment. Panelists are scheduled to discuss the provision, and its implications, from 10 a.m. to 3:30 p.m. Friday at the University of Montana's Flathead Lake Biological Station.

Registration is $10. Call (406) 243-7700 for information, or

e-mail thompson@crmw.org.

For years, Brown taught American government in Montana high school classrooms, later in college classrooms.

The Republican also spent 26 years in the Montana Legislature, before stepping down to travel the world on tours of democracy-building. Today, he's senior fellow at UM's public policy center, the O'Connor Center for the Rocky Mountain West.

If there's a single thread that weaves together Brown's exceptional life of public service, it's a deep and genuine regard for the notion of “government by the consent of the governed.”

“It's been at the basis of most everything I've done,” he said.

And at its core is Montana's Constitution.

Brown was a legislator back in 1972, when the constitutional convention revamped a document that hadn't been systematically revised since 1889.

The result, he said, was “one of the most modern constitutions in the country.”

The result, he said, was also “some very strong differences in opinion.”

Take, for example, that guarantee of a clean and healthful environment.

What, exactly, does it mean to be clean and healthful? How do you interpret that guarantee? How do you implement it?

Currently, Montana's top court is hip deep in clean and healthful argument, deciding just what the constitution means on those points.

Residents of Sunburst, whose groundwater was polluted by a gasoline refinery, sued Texaco, arguing their right to a clean and healthful environment had been trounced.

They won a $41 million settlement, but the company appealed to the state Supreme Court.

That same court has its hands full of similar cases. The community of Superior sued Asarco for polluting water and soil, and landowners near Lewistown sued Canyon Resources for pollution allegedly caused by the Kendall gold mine.

But can people sue a company for breaching a constitutional guarantee? Or can they only sue the government if it doesn't enforce environmental laws defined by legislators?

Big polluters often are big companies, and big companies have a history of big influence with the state legislature - so what happens if lawmakers don't enact adequate laws? Can the citizens demand their constitutional right directly?

“This is big stuff,” Brown said. “This is important stuff. This is historic.”

As are Brown's symposiums themselves. Back in 1972, many of the lawmakers involved in the constitutional convention - the “con-con,” as it came to be known - were already middle-aged. Now, a full 34 years later, not a few are dead and gone.

If he doesn't gather them up now, Brown said, it may be too late to do it 10 years from now.

“It's been incredibly interesting to visit individually with these con-con delegates,” he said. “They all have remarkably different interpretations of these constitutional provisions, and why things happened the way they did.”

Brown's been taping delegate interviews for UM's Mansfield Library, and the library also is recording the symposiums for its historical archives.

“It's given me the opportunity to be involved in a way that I think is historically important,” he said.

He's gathered the delegates for the panels, gathered today's lawyers who are interpreting what those delegates wrote. Some provide the historical context, some provide the case for modern relevance, and most disagree on quite a bit.

Surprisingly, he said, the “intent” of constitutional lawmakers is pretty much impossible to discern, even when the lawmakers are right there in the room. Courts constantly try to re-create legislative intent, but the fact is, “there was no unifying consensus.”

The constitution, like most legal documents, was a compromise, packed with agendas and amendments and old-fashioned horse-trading. It has to be a living document, Brown said, if it is to survive all that and remain consequential.

“That's how it is,” he said. “That's the wonderful thing about our system - everyone has a right to their say, but no one has a right to their way.”

History will be the ultimate judge of both the say and the way, and that's exactly what Brown is providing this foundation for.

What he does is prepare “a good, solid lineup of people who understand the issue from all sides,” then let them at it with the cameras rolling. Some panelists are con-con members. Some are lawyers actively arguing the clean environment provision in front of the high court. Some are stakeholders, citizens for whom the constitution is an everyday resident.

The symposiums beat any reality program hands down for drama, he said - and as an added bonus, they actually matter.

This is the civics class he always wished he could teach, with a panel of horse's mouths right there in front of the students.

And make no mistake - all citizens are students of governance, in Brown's opinion. We neglect those studies at our own peril.

The right to education will affect your taxpayer pocketbook now, and will affect the economic health of your state in the distant future. The right to a clean environment, likewise, will help determine the look of Montana's economic landscape for years to come.

“This has been litigated,” he said of the environmental provision, “and there have been strong differences of opinion. It's never been really, carefully defined. It's unresolved, and it's a wonderful opportunity for a philosophical discussion.”

It's also an opportunity for Brown to spend some quality time with an old family friend, a constitution whose personality has always fascinated him. Born, if barely, of many parents with many backgrounds, it remains, for Brown, as vibrant and alive as the day he watched it take that first breath, ratified as it were, on an uncomfortably slim margin.

“It's still relevant,” Brown said. “And I expect we'll be debating these sorts of things for a long time to come.“

Clean, healthy learning

“The Montana Constitution: Progressive Spirit of the Rocky Mountain West” runs from 10 a.m. to 3:30 p.m. Friday at the University of Montana's Flathead Lake Biological Station.

Registration is $10. Call (406) 243-7700 for information, or e-mail thompson@crmw.org.

Participants earn five Continuing Legal Education credits or Office of Public Instruction renewal units.

More information is available online at www.crmw.org.

Subscribe to the Missoulian today — get 2 weeks free!