Recently the Department of Homeland Security granted Montana an extension of time to conform to the “REAL ID” law passed by Congress in 2005. In a nutshell, the REAL ID law demanded that state driver license and identification cards conform to federal requirements concerning information and data-sharing as laid out by DHS, and that these identification documents have the approval of DHS.
Only state-issued identification documents that met DHS standards would be valid for entrance to federal buildings (I hope the Post Office was not one of them), applying for Social Security, doing business with federally licensed banks, and by Transportation Security Administration officers for boarding aircraft.
In short, it created a de facto national identification card with a national data bank of private information on American citizens.
The extension was welcomed as good news by both Democratic Gov. Steve Bullock and Republican Attorney General Tim Fox.
If there is anything that the people of Montana can come together on, regardless of political party, it is the rejection of government snooping into our private lives, and so the Montana Legislature refused to accept the imposition of the REAL ID in 2007, with all legislators voting for the bill that rejected it. That doesn’t happen very often.
It was seen as an unwarranted intrusion into the personal lives of Montanans, and Montana would not participate in its implementation.
It goes without saying that we Montanans value our privacy, and that is reflected in our 1972 Constitution. Montana is one of only 10 states with a constitutional right to individual privacy. It is Article II, Section 10 of the Montana Bill of Rights, and states, “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
Delegates to the 1972 Constitutional Convention felt that times had changed so much since the U. S. Constitution was written that in spite of U. S. Supreme Court decisions affirming that there was an implied right to privacy, such a right was so important that it needed to be explicitly stated in the Montana Constitution.
Wade Dahood, a Republican delegate from Anaconda, as quoted in the Montana Standard of Feb. 3, 1972, said, “As government functions and controls expand, it is necessary to expand the rights of the individual.”
But the clause was written not just out of concern for government intrusions of privacy. It was also concerned with intrusions by businesses and individuals.
Interestingly, the constitutional language was amended to limit the right of privacy to an individual right to privacy rather than a personal right to privacy. The distinction being that corporations are legally persons, and using the word Individual makes clear that this right is not enjoyed by corporations. The amendment passed unanimously, as did the entire statement.
If you have never read the Proceedings of the Constitutional Convention, you should give it a look. You will be in for a treat if you do. (You can access it here. It’s a bit hard to maneuver because of the limited technology then in use, but worth it.)
One hundred Montana citizens, none of them then elected officeholders at the time, were elected as delegates. They proposed and debated what should and should not be in our constitution, and they did it thoughtfully and with respect for everyone’s opinion. It is a study in statesmanship the likes of which we have not seen in a long time, but deserve to see again.
Jim Elliott is a former chairman of the Montana Democratic Party and a former state senator from Trout Creek.