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James C. Nelson mugshot


A former state Supreme Court judge said Montana has the most progressive Constitution in the country and it is up to the people to keep it that way, and he blasted suggestions by a lawmaker to make changes to the document now entering its 50th year of being revised.

His comments have prompted that legislator to challenge the judge to a debate. 

James Nelson said Wednesday toward the end of nearly one-hour-long webinar on Montana’s Constitution that people applaud and vote for politicians who tell them what they want to hear. 

He said that has manifested itself in the way people vote for candidates not because of what they can do for us, but to hurt perceived enemies. 

“It is not what you can do for me, it is how you are going to marginalize, demonize and nullify those who don’t agree with my partisan or religious ideologies,” Nelson said, adding that author Tom Nichols calls it the "power of resentment."

Nelson, who served as an associate justice on the state Supreme Court from 1993-2012, said this is how governments are turned over to those who would deconstruct the Constitution, calling them “tyrants, authoritarians and fascist,” adding that our democracy dies not from without but within.

Montana updated its 1889 Constitution, which some said was outdated and heavily influenced by the "Copper Kings," in 1972 through a constitutional convention. It includes provisions such the right to a clean and healthful environment and addresses environmental concerns, including water rights, cultural resources and protections. Officials noted it recognized that all the people should be involved in government, adding that 28 of the 100 delegates were women.

Nelson said there are politicians in Montana who are dishonoring the rule of law for the Constitution, singling out Rep. Derek Skees, R-Kalispell, for comments he made in November.

The Montana Free Press and Flathead Beacon reported that Skees had called the Montana Constitution a “socialist rag.” According to Nelson, Skees said the document gave courts the legal basis for blocking abortion restrictions.

Nelson said Skees has called for throwing out Montana’s Constitution.

“Skees seems to forget that when he was sworn in as a public official he took an oath to support and protect and defend Montana Constitution," Nelson said.

Mugshot Rep. Derek Skees, R-Kalispell


Skees on Friday defended his comments.

"I will debate anybody, anytime and anywhere on the merits of this Constitution," he said.

Skees said he and others have been trying since the late ‘90s to modify sections of the Constitution, only to have efforts thwarted by the state Supreme Court. He said it is no longer a living, breathing document that citizens have a chance of changing because the courts always reverse citizens efforts.

He challenged Nelson to a debate on the Montana Constitution.

In a column to state newspapers in December, Skees said he had the courage to say the hardest part of taking the oath of office was his belief the Montana Constitution has so many flaws.

“I have never violated that sacred oath, as it is to God and the people of Montana. For a long time, I have advocated that we should vote YES in 2030 to have a call for a Constitutional Convention,” he wrote.

He said his choice of words in calling it a “socialist rag” “was perhaps too aggressive in an attempt to start this dialogue.”

Skees also accused those calling on him to resign over his comments as displaying "fake moral outrage."

Nelson said Skees' style of attack is being used by dictators around the world.

“This mindset also breeds the sort of violence that rewards and makes heroes out of insurrectionists, and those who have taken an assault weapon to a public assembly find that as justification to use the weapon to harm others and then themselves claim self-defense," he said. 

Nelson said it serves to justify threats against public officials, school board members and health care workers.

“It serves to justify partisan thuggery by public officials against other elected officials and the minority party,” he said.

Skees dismissed Nelson’s claims of being a tyrant.

“A tyrant wants all of the decisions made in your life to be made by government,” he said. “I am the exact opposite. I want all decisions to be made by the sovereign citizens of the great state of Montana.”

“I see the citizens as the solutions for almost everything,” he said.

Nelson said Montana, as well some other states, have passed voter suppression laws to ensure one-party rule to the exclusion of other parties and candidates. He said this was not constitutional and “not the rule of law but the rule of lie, indeed the rule of the big lie.”

“Democracy is not a spectator sport, our constitutions cannot protect themselves from authoritarian takeover,” he said. “Democracy and the maintenance of our constitutions require the active support, protection and defense of each of us."

“We cannot formulate a vision of the Constitution that works for us, as I have suggested we should, if the Constitution and the rule or law are ripped asunder by the fascists, the authoritarians and dictator wannabes in our midst,” Nelson said.

He asked people to leave that night “secure in the knowledge the constitutions belong to we the people, not to the government, not to corporations, special interests or wealth and privilege, and most certainly not to the authoritarians and fascists that want to destroy them.”

He said constitutions are living documents adaptable to, and fully capable, of meeting the important challenges of the world now and into the future. He urged people to make their vision of what the Constitution is and should be as part of their life experience.

“Don’t ask why, ask why not. Think outside the box,” Nelson said. “To be sure, thinking outside the box is risky, forming your own constitutional vision is risky and acting on your vision is riskier still, but know too that risk is part of our human experience.”

The webinar, “The Montana Constitution celebrates 50 years – What your constitution can do for you," was sponsored by the League of Women Voters Helena Chapter and Lewis and Clark Library. There were 174 people who participated. To watch the webinar, go to:

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Assistant editor Phil Drake can be reached at 406-231-9021.

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