Privacy Lost: How the Montana Supreme Court Undercuts the Right of Privacy

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Seattle Journal of Technology, Environmental, & Innovation Law


In 1972, Montanans ratified a new constitution that included a “right of privacy.” The plain text of the provision fails to express the intent of the Framers who not only intended to afford Montanans a right, but also to impose a responsibility on the State to continuously and thoroughly examine State practices in light of evolving means of invading residents’ privacy. This intent has gone unrealized despite the fact that the intent of the Framers is clear, readily available, and the primary source state courts ought to use when interpreting the Constitution. This article delves into the transcripts of the 1972 Constitutional Convention to increase awareness of the true intent of the Framers—to create a right for residents and a responsibility for the government. The first part familiarizes the reader with the arguments made by Framers during the Convention and their intent with respect to the right of privacy. The second part explores how courts have interpreted the right of privacy and details the extent to which courts have diverged from the intent of the Framers; it also assesses the extent to which the legislative and executive branches of the Montana state government have advanced the intent and objectives of the delegates in terms of privacy protections. The third part examines the importance of the Montana Supreme Court as well as the legislative and executive branches reviving the Montana Constitution’s right of privacy and applying it to new threats to that right.

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