“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Supporters argue that while a universal health care law already exists, it can be repealed, as occurred to such coverage under Michael S. Dukakis before that statute even went into effect.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 email@example.com