“It’s not a matter of following the constitution,” says John Reinstein, legal director of the American Civil Liberties Union of Massachusetts. “It’s following the constitution down the drain.”
Great line, but, of course, once you start choosing which parts of the constitution to obey, you’re practicing cafeteria constitutionalism, which invites cynicism.
Say for the sake of argument that the ballot initiative would embed in the constitution the right of gays to marry and that the Legislature dodged a vote on it. Isaacson and Reinstein would, in righteous dudgeon, demand that legislators honor their oath of office to obey the state constitution.
They would demand that a Constitutional Convention follow Article 48 of the document, whose clear intent calls for a vote on an initiative before it. (If there are 50 votes in favor, the proposal goes on the ballot in the next statewide election.) The irony is that Article 48 was added to the constitution in 1918 to provide citizens a means to thwart an obstructionist legislature.
There was nothing pretty about the 109-to-87 vote to skate on the gay marriage initiative, which drew a record 170,000 signatures. No profiles in courage either. The leaders of both houses took a powder instead of defending the craven recess vote.
Nothing around this issue is clean. It is, for starters, deeply unsettling to line up with Governor Mitt Romney , who with 10 plaintiffs petitioned the Supreme Judicial Court last Friday to order Secretary of State William F. Galvin to put the initiative on the 2008 ballot. Romney, whose White House ambition dictates his every move, has a case here, however cynically motivated.
It’s not just Romney and gay marriage. Another constitutional amendment that got sidetracked calls for affordable, comprehensive health care for everyone in the state. (It was banished to a study group that has never met.) Earlier this month, former U S attorney Donald K. Stern filed a complaint to the SJC similar to the Romney suit on behalf of a group behind this initiative.
Supporters argue that while a universal health care law already exists, it can be repealed, as occurred to such coverage under Michael S. Dukakis before that statute even went into effect. They want the initiative on the 2008 ballot if the Legislature fails to act before it adjourns Jan. 2 — the day you can bet your 401(k) the gay marriage amendment will die.
Forget Springsteen, these two SJC hearings will be the marquee events in these parts.
If these constitutional collisions seem like no-brainers, they’re not. It’s easy to get hoisted by one’s own petard here. Consider, for example, a ballot initiative with 50 votes at a Constitutional Convention calling for the right of every citizen in the state to own rocket-propelled grenade launchers.
Then there is the whole thorny issue of direct democracy — the euphemism for law by popular ballot. Should we really make statutes by getting signatures from people dashing into True Value for duct tape on issues of basic rights or complicated measures like universal health care? Yet to deny the procedure because such measures are deemed too important to leave to the masses smacks of bald elitism.
A process liberal knows when the process is broken, and it is now. The bar in the amendment procedure is set dangerously low.
It should take a lot more than 50 votes– a mere 25 percent of a constitutional convention– to propel an initiative onto the ballot.
Two-thirds of each house of Congress, in contrast, must ratify a constitutional amendment before it goes to the states. We should head in that direction pronto.
In the meantime, there is the minor detail of the state constitution.
I can’t predict the outcomes of the two SJC petitions– intellectual mud wrestling among smart lawyers will shape them– but I do know that the current situation smells bad.
That’s why I’m a process liberal.
Sam Allis’s e-mail address is allis@globe.com
I don’t want to re-start an argument, but perhaps we’re all better off turning our attention to fixing the referendum process, rather than trying to fix internal legislative processes. The outcomes on both petitions are symptoms of a referendum process that is badly broken. If I were to be a process liberal, I would put my energy into reworking the processes on citizen initiatives. Here are a couple of modest proposals.
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1. Because these are citizen initiative, only registered voters should be able to submit petitions. In my ideal world, they’d be the only ones eligible to collect signatures.
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2. Ban paid signature gatherers. This single step would end many abuses of the process.
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3. Change the ConCon voting margin from 25% to 40%. That should help some of the process problems inside the ConCon.
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It should be difficult to amend the Constitution. The legislature should have a meaningful role in vetting issues that reach the voters. Our experience with the Anti SSM amendment, the Health Care Amendment, the Wine in Grocery Stores amendment, and many others makes me think that it could be worth our energy to attempt to deal with some of the bigger process issues.
and similar to constructive proposals put forth in other posts. To respond to your specific suggestions:
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1a. Only registered voters can submit petitions. The original petition is submitted to the AG and must be signed by 10 registered voters, and then the additional petitions must be signed by 65,000 registered voters.
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1b. I’m not sure how I feel about only voters being able to collect signatures. Then youth who care about an issue would be prohibited from participating, and again, how to enforce?
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2. I heartily agree that there should be a ban on paid signature gatherers, but how to enforce that? In 1918 when this intitiative amendment process was set forth there was no way our forbears could have knwon it would bring about an entire industry of paid signature gatherers (One of the biggest outfits is based in Arizona, I think. And I recall that for some regressive ballot inititative undertaken here in Mass. a few years back the paid gatherer outfit hired down and out residents of a homeless shelter for $1 a signature, even though the going rate was $1.50. Theseindustrious folks then set about looking up names in the phone book and writing in reams of false signatures on petitions all in the same hand writing. They were later thrown out. Hah!)
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3. Raising the bar on the required number of legislative votes is a tough one to determine, at least for me it is. If you were to raise it for citizen initiative amendments from 25% to 40%, then does it follow that it should be raised for legislative initiatives from 51% to 75%?
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And BTW the wine in grocery stores issue was a ballot initiative that does go thru the legislature for a vote at all; if and when the signatures are gathered as required it goes straight to the ballot. A constitutional amendment initiative is a MUCH MORE LABORIOUS PROCESS, as well it should be.
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I agree that the process issues do indeed need addressing, but that does not make the dilemma before us in the current ConCon process go away.
…is that it requires a constitutional amendment to change the process!
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BTW – in 1918 when the process was set up – weren’t there 351 house members, plus senators? Wasn’t the low threshhold created in part by trimming the number of legislators? How do you know your percentages will work in the future?
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Face it – the petition system works; it’s the legislature that doesn’t.
Bad idea: Call people names, implicitly criticize constitutional government, and cause the Globe to publish columns reenforcing the anti-marriage crowd’s insincere arguments about process.
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Better: Highlight the cynical opportunism of marriage-rights opponents who only are in favor of “process” when it suits their agenda.
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If you want to be dramatic and theatrical, offer to take seriously the procedural claims for a legislative vote on marriage if and only if there is a vote on abortion rights–similarly defeated by legislative slight of hand in the 90s–first. (Not possible to do this session, so a stunt, but an illustrative one.)
closely–was either of the anti-gay marriage amendments voted on? I know there was one that would have banned civil unions as well as marriage, and then one that simply said marriage is limited to one man and one woman, which has been interpreted as allowing civil unions (?)…was either one voted on? And would the vote not taken be the first vote, or the second? It seems it would be the second, if it was voted on in 2004.
the first amendment was voted on, and was unanimously rejected — but that wasn’t ever really in serious contention. The second, which is the initiative petition, and which says nothing about civil unions, is the one everyone’s still talking about.
Or would this be the first vote? I’m guessing it must be the second, otherwise I can’t imagine why they wouldn’t allow a vote.
This would be the first vote.
If all this vote would do is allow for the next step, which would be another vote (within 2 years) by the next legislature, and the next legislature is far more hostile to anti-marriage stuff than this one is…why not allow a vote? They could fulfill legal requirement of a vote without actually taking final action. Evidently a lot of legislators are willing to go a very long way to avoid being recorded as having voted one way or the other, even though there is no election to worry about for 2 years. It also sounds like the amendment, if it went forward, wouldn’t be on the ballot until 2010 at the earliest (if the second vote were in 2008, allowing for maximum procrastination by the next legislature).
The possible procedural remedies from the court, in order of increasing improbability, are as follows:
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1) The court orders the Attorney General to subpoena the members of the joint session and sequester them until such time as they have voted on the proposals before them.
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2) The court declares that adjournment without final action on any initiative proposals is the equivalent of passing those proposals. In the case of the anti-marriage amendment, that would mean that the proposal would qualify to go before the next Joint Session for a vote there on whether to put it on the ballot.
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3) The court orders the anti-marriage amendment put on the ballot in 2008, effectively jumping the queue (and putting itself in the place of not one but two Joint Sessions).
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I do not belive any of these things will happen, but (3) is absolutely a nonstarter. Yet that is exactly what Romney et al. are asking the court to do.
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Ask yourself why His Expediency would prefer his opportunistic quest for redress in this case to fail.
alice, my thinking has been similar to yours. to reply briefly, if it was voted on Jan 2 and got 50 or more yes votes it would advance to the next session 2007-08 for its 2nd required vote. If it was voted on before election day Nov 08 and got more than 50 yes votes a second time (which I’d work hard alongside others to prevent) it would apprear on the 08 ballot. If the lege delayed the 2nd concon vote in the 2007-08 session until after Nov 08 election day and it eventually got 50 plus yes votes, then it would appear on the 2010 ballot. I want to make it go away forever and replace it with growing acceptance of gay marriage here in Mass. and in all other places.
Sam Allis assumes something that might not be true.
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Well, did he ask them if that would be their response? I think it’s possible that they might say, we don’t have the votes yet but we’re working on them and will try again. Just as they continue to work to get the votes to stop this amendment. And if they didn’t have the votes, I’m sure they wouldn’t be in such “high dudgeon.” Just as voteonmarriage wouldn’t be if they didn’t have the votes.
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I admit I’m conflicted about this. Part of me wants to see the vote taken, and if it gets on the ballot, I’d fight to defeat it. Now, with Arizona, that seems possible. Expensive, in many ways, but possible.
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At the same time, it’s my life we’re talking about. My future. Sure, I got to get married, but what’s to prevent that from being taken away from me? Sometimes you just have to do everything you can to protect yourself and your family. If a ballot question lost, be sure the religious right would try something else. This ain’t going away with one vote.
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I think some straight white people (not just the on the right) have a hard time wrapping their brains around the concept that it’s possible not to feel safe in this society. When was the last time you held your beloved’s hand in public and were insulted, spit on, beaten, or worse?
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I don’t see what happened as subverting the process. To me, it was entirely within the process and has been done before without such complaints. If voteonmarriage doesn’t like it, they can try again. Maybe next time without all the fraud.
In the meantime, the Legislature is disobeying the law, and their owths to uphold the Massachusetts Constitution. The SJC has ruled that this exact action IS subverting the process, in Term Limits vs. Bulger, 1992.
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What about when something you desperately WANT is trampled like this? Morally, you have no recourse then if you condone this action now. But you know that.
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I am now a BIG fan of locking them in until they vote on Jan. 2nd – can the Atty. General – who has NOTHING to lose – really do that?