9 December 2021 — 1432 mst
Rep. Derek Skees did not violate his oath of office
when he called Montana’s constitution a “socialist rag”
State Rep. Derek Skees (R Kalispell, HD-11) was angry and exasperated. Yellowstone district judge Michael Moses had issued a preliminary injunction against enforcing three anti-abortion bills (HB-136, HB-140, HB-171) passed by the Republican controlled 2021 Montana Legislature. Speaking to the Flathead Beacon’s Maggie Dresser, he minced no words:
“There’s no basis in our constitution to use the right to privacy to murder a baby,” Skees said. “The courts have humongously failed and we need to throw out Montana’s socialist rag of a constitution.”
I knew the moment I read Dresser’s story that Skees’ comment, which he later admitted “was perhaps too aggressive,” would go neither unnoticed nor unremarked.
At the Montana Free Press, Erich Dietrich called Mae Nan Ellingson, a drafter of Montana’s 1972 constitution, who told him:
I have actually never heard anybody refer to it as a socialist constitution, so that is pretty surprising to me. I feel very strongly that the right of privacy is not a socialistic idea. If you look at socialistic or communistic governments, one thing that most people lack is privacy.
Ten days later, the Billings Gazette published a righteous editorial demanding that Skees “…resign from the Legislature or be forcibly removed.”
Presumably, forcibly removed means convening a special legislative session in which his Republican colleagues who voted for the anti-abortion bills he defends would vote to expel him from the Montana House of Representatives for defending those bills.
The Gazette’s reasoning? His criticism of the constitution violated his oath of office.
Article III, General Government, Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: “I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).” No other oath, declaration, or test shall be required as a qualification for any office or public trust.
According to the Gazette:
…as a citizen, he also has every right to hold that constitution in low regard, to take the extreme position he has, to criticize it and publicly disparage it, to rail against it. But he forfeits those rights when he swears an oath to support, protect and defend the constitution as an officeholder.
Legislators surrender their constitutional right of free speech by taking an oath of office? How in tarnation did the Gazette's editorial writers come to embrace that pile of oats that just passed through the horse? How did they muster the chutzpah to serve it to their readers?
Let there be no mistake. Legislators have exactly the same free speech rights as the citizens they represent. Holding public office does not diminish those rights. Their oath of office does not require that they refrain from criticizing Montana’s constitution, from calling for changes to it, or from demanding it be thrown out and replaced with something else. Indeed, because Montana’s constitution contains three ways to amend it, criticizing the constitution is a necessary predicate for improving it through amendments. Calls for constitution reform or replacement are acts of upholding the constitution until proven otherwise.
Skees did not raise a militia and march on Montana’s capitol. He did not try to incite a crowd to lynch Judge Moses. He merely made a silly statement to a reporter that his critics used as an excuse for cudgeling him for other political sins they believe he committed.
Nothing in Montana’s oath of office requires that a legislators remarks, on the floor of the legislature or from a soapbox in a park, always be constructive and wise. If it did, the legislature never would muster a quorum.
What kind of constitution does Skees want for Montana?
Skees admits he wants to fix what he thinks are flaws in Montana’s constitution:
This all began because I had the courage to say the hardest part of taking my oath of office was my understanding that 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.
What parts of the constitution does Skees think are flawed? Flawed how? And how would he fix those flaws? He doesn’t say. But I have a strong hunch he would try to insert in Montana’s constitution the reactionary Liberty Amendments proposed by Mark Levine in 2013 or the functional equivalents thereof. From the Wikipedia:
The eleven amendments proposed by Levin:
- Impose Congressional term limits;
- Repeal the Seventeenth Amendment, returning the election of Senators to state legislatures;
- Impose term limits for Supreme Court Justices and restrict judicial review;
- Require a balanced budget and limit federal spending and taxation;
- Define a deadline to file taxes (one day before the next federal election);
- Subject federal departments and bureaucratic regulations to periodic reauthorization and review;
- Create a more specific definition of the Commerce Clause;
- Limit eminent domain powers;
- Allow states to more easily amend the Constitution by bypassing Congress;
- Create a process where two-thirds of the states can nullify federal laws;
- Require photo ID to vote and limit early voting
Levin would have these amendments proposed to the states by a convention of the states as described in Article Five of the Constitution. [Link added by Flathead Memo.]
In the 2021 legislative session, Skees introduced his version of Liberty Amendment 10, HB-570, “A bill for an act entitled: ‘an act prohibiting infringement of the state of Montana’s constitutional right to nullification of any federal statute, mandate, or executive order considered unconstitutional by the state;.’” It died 47–52 on its second reading in the Montana House, a surprising close vote that reveals how deeply neo-Confederate states rights philosophies have infected Montana’s Republican Party.
Instead of consuming themselves arguing that Montana’s constitution is not socialist, Skees’ critics need to look at the larger picture, as described by Nancy MacLean in Democracy in Chains, and Kim Phillips-Fein in Invisible Hands, to look at the decades old movement by malefactors of great wealth, and ideologues with fascist tendencies, to replace the income tax, the New Deal, the Great Society, affordable heath care — the compassionate liberal society built over a century of hard work — the all for one and one for all society that has increased life expectancy and dramatically improved America’s standard of living — with an Ayn Randian dystopia where the rich get richer, and the poor, the 99.999%, get poorer, sicker, and die sooner. That’s what Skees’ detractors missed when they excoriated him for blaspheming Montana’s sacred constitution for which praise is mandatory and criticism is taboo.
Here’s the short version of Nancy MacLean’s thesis:
And, here’s the long version:
If Skees ever drafts a replacement for Montana’s 1972 constitution, Flathead Memo will publish it, and critiques of it.