My position boils down to this: process matters. Procedural rules, such as those set forth in Article 48 which governs initiative petitions, are designed not to favor particular substantive outcomes, but rather to ensure that everyone plays by a single set of rules in trying to obtain their desired outcome. And “everyone” is supposed to include the legislature.
It’s easy enough to see why this is important. First, consider an actual scenario: the health care amendment, which has already been approved by one legislative session and needs only 50 votes in this one to be advanced to the ballot, may well fall victim to the maneuvering on marriage. If, as is now widely expected, the ConCon on Jan. 2 adjourns without doing anything, the health care amendment will die, and the hard work of many health care advocates to get that question on the ballot (including of course our own AnnEM) will have been in vain. If the legislature had done what it was supposed to have done, this amendment would have easily received the 50 votes it needed to get to the ballot. Instead, in a sleazy move by Sen. Moore (D-Uxbridge), it got shoved into a committee in the last ConCon, and it may well die on Jan. 2, all because of parliamentary maneuvering. Here, monkeying with the process leads to a substantively bad outcome.
Second, consider a hypothetical scenario. If Goodridge had been decided differently — which it would have been had only one vote gone the other way — I know I would want the ability to “overrule” the Court by writing into the Constitution a requirement that marriage rights cannot be denied to same-sex couples if they are extended to opposite-sex couples. As was pointed out in the thread linked above, the same folks who are now applauding the legislature’s action would be decrying it if the legislature had buried that hypothetical amendment, rather than the actual one that’s now before them. Just because someone else’s ox is being gored today doesn’t mean it won’t be yours tomorrow.
Now, let’s consider some of the arguments often raised against my position.
- Individual rights shouldn’t be subject to a popular vote. This position carries a good deal of rhetorical force. But I think it misses a central fact, which is that amending the state Constitution requires a popular vote. There’s no other way to do it. So the correct question is not “should individual rights be put to a popular vote,” it’s “are individual rights an appropriate subject for a constitutional amendment?” I can’t see how the answer to the latter question is anything but “yes.”
Consider, for example, the process for amending the U.S. Constitution, which of course involves no popular vote — Article V requires the concurrence of 2/3 of each branch of Congress and 3/4 of the state legislatures. If the misguided effort to amend the US Constitution to bar states from recognizing gay marriage (which seems much less likely now than it did on Monday, thank goodness) had ever been successful, there’s no plausible argument that the effort was somehow illegitimate, is there? The process is the process, and if proponents can get the votes, they can amend the Constitution to say any damn-fool thing they want. Outlawing gay marriage, outlawing flag burning, outlawing abortion, it’s all fair game.
Just so, it seems to me, with our own Constitution. Because of the way our constitutional amendment process works, saying that certain issues “shouldn’t be put to a vote” is tantamount to saying that certain issues should be totally off limits from the process of amending the Constitution. As a matter of political and democratic theory, I don’t think that’s a tenable position.
Note, by the way, that the “no vote” argument can’t be limited to amendments proposed by initiative petition. Legislative amendments (i.e., those introduced by a legislator rather than by a signature drive), if approved by a majority of two consecutive sessions, also must go to the ballot before they take effect. So if you’re saying that an issue shouldn’t ever be on the ballot, you’re saying that that issue can never be the subject of a constitutional amendment — regardless of how outrageous the court decision or other event that led to the desire to change the Constitution (again, recall the scenario in which Goodridge comes out the other way). Again, I just don’t think that’s tenable.
- It’s just parliamentary procedure, and this stuff happens all the time in legislatures. Sure, legislators routinely use parliamentary maneuvers to achieve substantive outcomes they want, and in general there’s nothing wrong with that. It’s part of the process.
But there’s a big, big difference here. In the process of proposing and enacting ordinary legislation, there is no constitutional framework that requires any proposal ever to see the light of day. So there’s nothing illegitimate about killing a bill by burying it in committee rather than by voting it down on the floor.
But that line of reasoning doesn’t apply to constitutional amendments, because, again, Article 48 is pretty clear on this subject. It requires that “final action” be taken on the proposals properly put before the legislature. And the SJC has confirmed in the term limits case and in a different gay marriage case that the legislature is supposed to take “final action” — i.e., take an up-or-down vote on whether to advance the proposal to the next session or to the ballot — on every proposed amendment that comes before it. The fact that the SJC has said that it cannot force the legislature to vote doesn’t mean that the Constitution doesn’t require the vote. It just means that there’s no judicial remedy for the legislature’s failure to observe its constitutional duty.
Along these lines, I’d respectfully disagree with our friend Dan Kennedy’s argument that, by deciding the term limits case the way it did, the SJC’s decision “fell short of finding that Bulger had violated the constitution.” As I read the case, the SJC in fact did conclude that the legislature was in violation of its constitutional obligations. The fact that the SJC couldn’t fix it doesn’t mean it didn’t happen.
we have a lousy process and we should fix it
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