Jon Ellingson

Last month the Montana Supreme Court issued two impressive decisions that illustrate the brilliance of our Constitution and the importance of an independent judiciary. Praise is justly deserved for those who are responsible for those decisions, and there are many.

But first a word about the cases themselves.

The Court decided Cross v Montana on December 11. Writing for a unanimous court, Justice Baker reaffirmed the principle that our Constitution protects the right of every one of us to “to make medical judgments affecting his or her bodily integrity in partnership with a chosen health professional.” The state has “no interest … to justify its interference with an individual’s fundamental privacy right to obtain a particular medical procedure.” In other words, Big Brother should keep his nose out of our private, medical decisions.

Then on December 18th, the court issued its opinion in the Held case. Chief Justice McGrath wrote the decision and was joined by five of the other six justices. This ruling gave enforceable meaning to the inalienable right of each of us to a clean and healthful environment, and gave further meaning to the Constitutional duty of the state to “maintain and improve a clean and healthful environment for present and future generations.”

So the highest praise goes to our Supreme Court for implementing the language and meaning of our Constitution.
Praise is also deserved for the independence of our judiciary. Our Supreme Court justices are not partisan hacks, bending to the prevailing political winds. They are sober, learned, and responsible public servants who decide cases based on the law and the facts; not on the basis of public opinion.

Judge Gordon Bennett of Helena used to speak eloquently about the importance of a judiciary that is insulated from the whims of the majority. In summary he observed that “It is the bulwark against the tyranny of the majority.” While we have a government based on the principle of majority rule, our government also is founded on the protection of minority rights. An independent judiciary is essential to this protection.

Jon Ellingson
Jon Ellingson
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Next we should praise our Constitution itself. This remarkable document generates a lot of buzz these days for good reason. It contains many rights and principles that are as forward thinking today as they were more than 50 years ago. It was the product of a convention that included no public office holders and where the delegates were seated alphabetically and not by party affiliation.

These factors contributed to the respectful collegiality of the members as they considered how to create a document that best serves the common good. Imagine how well we could address the problems of today if we set aside partisanship once again.

Finally, praise goes to delegate Bob Campbell who provided the language that defined both our right to privacy and our right to a clean and healthful environment. Bob called the right to privacy the fundamental “right to be left alone.”

As free, autonomous human beings, we have the right to decide how to live our lives, pursuing our interests and passions without interference from the state. In establishing our right to a clean and healthful environment, his language also imposed upon the state the duty to maintain and enhance it. Bob rightfully referred to these provisions as the “jewels of our Constitution.” Bob’s words are liberally spread in other parts of our Constitution, starting with the Preamble. These two rights highlight the legacy that he left our state.

There are countless reasons to praise these two decisions and the individuals who had a hand in making them happen. Our lives are better because of their efforts.

Jon Ellingson serves as Vice Chair of the Board of Big Sky 55+. He is a former state legislator and was Senate Majority Leader during the 2005 session. His career includes work with former Attorneys General Mike McGrath and Steve Bullock, and as the legal director of the Montana ACLU.