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 had ever been successful (which seems much less likely in light of the election, thank goodness), 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.
I can’t see any reason why the same shouldn’t apply to the Mass. Constitution — our process is different, but the principle is the same. The Constitution is the charter that defines our government. If the people or their elected representatives lack the power to change it in any respect, they lack the power to control and define their government. That’s just not consistent with democracy as I understand it. The job of the courts is to interpret the Constitution. But the people must retain the authority to alter the document that the courts interpret. Otherwise, the courts really have become an oligarchy, and that’s a step down a very rocky road.
After all, “constitutional rights” are simply those rights set forth in the Constitution, sometimes as interpreted and explained by the courts. I don’t agree with those who say that the Goodridge decision was “judicial legislation,” because I think the decision was a perfectly defensible reading of the document that was before the court. But I can’t see how it does not remain open to the constitutional amendment process to alter the document that the court was reading. So to say that “constitutional rights shouldn’t be on the ballot” doesn’t really make sense given our system of amending the Constitution, which requires that proposed amendments go to the ballot.
Now, perhaps it’s too easy to amend our Constitution — after all, there are only 27 amendments to the US Constitution, while we’re up to 120. If that’s the case, though, then the proper course is to alter the amendment procedure (a change that must be initiated by a legislative amendment). Until that happens, we’re stuck with the process we have, and the ballot is an essential part of that process.
Note, by the way, that the point I’m making here doesn’t necessarily argue against killing the proposed amendment by parliamentary means (though I’m not a big fan of that either). The question whether the legislature should take “final action” (i.e., an up-or-down vote on the merits) on every proposal before it is distinct from whether certain issues should or should not be on the ballot. My point here is that, given the process we have, I don’t find persuasive the argument that certain constitutional issues by their nature shouldn’t be on the ballot.
I’m not against new Constitutional amendments. I’m against the system in Massachusetts – where it only requires 25% of the legislature and 50% of the popular vote to change the constitution. It shouldn’t be that easy to change the Constitution; it should be damn near impossible. It should require at least 2/3rds support of the popular vote, at least. It shouldn’t be able to be pushed through the legislature, especially in the current era when just about anything can get enough ballot signatures if there’s enough cash to go around and people are paid by the signatures they collect.
<
p>
Do we want Massachusetts to become a state in which trivial measures are put up for a vote to be Constitutional Amendments? Other states have tax codes and all sorts of nonsense written into their constitution becuase the process is too easy.
<
p>
I don’t think most of the bloggers are saying that “rights” shouldn’t be put up for a vote. Most people – such as Lynne, Michael at Mass Marrier, etc. seem to be making essentially the same case that I am: that it’s too frakking easy. (I love Battlestar Gallicta lingo =p)
But the answer is to change the process, not to undermine the existing rules. Like it or not, the anti-marriage crowd got their petition in under the existing rules, and it seems to me that it should be disposed of under those rules. So take the vote. If it gets 50 votes, move it to the next session — where the chances are much better of defeating it on the merits, since Travis, Goguen, and Parente are all gone. Then all of these arguments go away.
and there’s a fair shot that it will, you’ll be perfectly fine with it going to the ballot? Once on the ballot, you’ll be perfectly fine when tens of millions are poured into this state, digging up an old issue?
<
p>
They’d face an uphill battle, but bigotry is alive and well and it wouldn’t take a lot to shift popular opinion.
<
p>
So if suddenly the rights of tens of thousands – including me – are stripped, you’ll be okay with that? Because it’s a better process?
<
p>
The legislature is perfectly within their rights to go into session on January 2nd, debate the hell out of the amendment and – at 9pm – go home. Or to decide, before then, to table it and vote on actual stuff that matters and would help millions of people in this state – like the health care amendment.
In the same way I was “okay” with John Kerry losing in 2004, but not “okay” with Al Gore being stripped of the presidency by an overreaching Supreme Court. I didn’t like either result, but I accepted Kerry’s loss as the result of a process that, for the most part, was legitimate; Gore’s loss, however, was not a legitimate result.
<
p>
Process is important — it’s what guarantees fairness. Just because someone else’s ox is being gored today doesn’t mean it won’t be yours tomorrow. At that point, expect all the arguments you are making now to be thrown back in your face.
Voting down my rights = gauranteed fairness. Interesting logic, even if it’s flawed.
<
p>
Parliamentary procedure is something that’s paramount in our system today – especially a system in which it’s tremendously easy, otherwise, to push through heinous amendments. I may not like the results frequently (such as when the first healthcare amendment was sent to committee), but it’s an important protection against draconian amendments such as #20.
It isn’t.
In many cases, people who vote one way during a ConCon wouldn’t have to stand for reelection for the second round of voting a year later – even in the House.
You’re quite understandably worried that there is a chance that if the gay marriage ban goes to the ballot you could lose the right to marriage established by Goodrich. It is a risk and it would be horrible if it happened.
<
p>
But we know that every Massachusetts citizen will be stripped of his/her rights under Article 48 if the Health Care Amendment and the Gay Marriage Ban and the other legislative amendments don’t get their up or down votes on January 2nd. Not just the almost 250,000 voters who signed those petitions but EVERY Massachusetts resident.
<
p>
It’s a head on collision of rights both of which are very important. But before you decide to deep six everyone’s right to petition the government – remember we might need it down the road. It may seem a little abstract but it is the most important tool we have to make the Legislature do something they don’t want to do – for good or ill.
<
p>
What would happen if all the polls were wrong and the gay marriage ban were ratified by the people? Wouldn’t you want to be able to repeal it? You can bet the Legislature wouldn’t open up the subject again. So you’d need to do an initiative amendment. And you’d need your up or down votes to put it on the ballot.
<
p>
What you’re lobbying the Legislature to do is to make a core part of our constitution meaningless.
<
p>
Violating one set of rights to protect others shreds the fabric of our democracy. We need to protect all our rights, even when they seem to collide, to handle the disagreements and conflicts we face as a society.
<
p>
Barbara Roop, PhD, JD
Health Care Amendment Campaign
What I am doing is saying it should be much harder than it currently is to change the state constitution. Even in the case of health care, the legislature WORKED. We have a work-in-progress bill that was passed and will get almost everyone insured in Massachusetts. There’s room for improvement and, if we keep calling up or congressmen, we’ll see that improvement.
<
p>
In other words, the system is working – including parliamentary procedures protecting the rights of the minorities. You have a health care bill that will make a very real difference in tens of thousands of people’s lives, even with parliamentary procedures making a stink of something you want.
The rules allow the legislature to do what has been done. Just as they allow filibuster, lack of quorum, etc.
the Massachusetts Constitution prohibits a graduated income tax. An initiative petition to change this was succesfully advanced to the ballot for a popular vote — where it was defeated.
<
p>
I favored the change, but it was defeated fair and square, in the proper manner. Had it been killed by a parliamentary move in the Legislature, I would have been quite unhappy and felt like my right to vote had been taken away.
which they are already excercising, in jeopardy so you can feel good about the process.
that’s not really a response to the argument I’ve raised. In any event, the best way (and, IMHO, the only way) to actually “move on” — which I want as much as anyone — is for the legislature to vote on this damn thing, and hopefully to defeat it, if not in this session then in the next one when defeating it will be considerably easier. If that happens, the amendment has died a legitimate death, and the issue goes away. Otherwise, we’ll just go through this whole wretched exercise again and again.
Team Homophobia will drag this issue up again and again regardless of whether or not we defeat it now, next year or perpetually put it on hold. The “process” is just one more check on bad bills, as far as I’m concerned (even if, on occasion, it brings a few good ones down with it).
Just because you have what you want at the moment. This is a terribly short-sighted position because if they turn against you (as they might) you’ll have no recourse. A better tactic is to rally support for your position and get the legislature to vote your way.
The electorate votes for every House member ever 2 years. If my position was anything close to being an oligarcy, the people could make quick changes. As it stands, they’ve had the opportunity to vote for pro-gay marriage and anti-gay marriage candidates on more than one occasion. None of the pro-gay marriage folks have lost, many of the anti-gay marriages folks have.
<
p>
Democracy is working fine, thank you very much.
David – if we couldn’t amend the Cosntiution – then a black man would only be worth 2/3 of a white man. The Equal Rights amendment, which I favot, was never ratified because it could not muster the votes. Sufferage for women WAS ratified because it COULD muster the votes. All of these things are seen as ‘constitutitonal rights’.
<
p>
We had prohibition and repeal. To me, THAT is a perfect thing. People wated to do sometoing, voted, foun d it didn’t work, and voted AGAIN.
this argument doesn’t work. Which is why the argument that works best is — the legislature is supposed to safeguard the rights of the people as well as uphold the constitution. Whether they do so through supposedly “procedural” votes or “up and down” votes, this is at the heart of what they are supposed to do. If they make mistakes and are not representing what the people want, then ALL legislators are up for election every two years (even better than the federal system).
<
p>
As of yet, we have absolutely NO indication that people think this ongoing so-called “procedural” dance the legislature is playing is important. If it was, than we surely could point out at least one legislator who lost because of gay marriage, right? But we haven’t seen that.
<
p>
The representative system works, and opponents of this process can and should make it a priority at election time if they think this issue is important. Clearly, the majority has spoken (twice) and we know the answer.
…is that Traviglini promised a vote. Think about that.
Peter,
<
p>
But it wasn’t just this election that Hoya was referring to. In both the primaries and general election of 2004, all special elections since, and the primary for the 2006 election, not a single pro-gay marriage legislator lost. Trav’s promise came the day of the election, so I doubt it made a difference in any elections this election day either. So it’s hard to see how Trav’s promise had any impact whatsoever on the election.
<
p>
This isn’t an important issue for most people in the Commonwealth. They are more concered about their jobs, their kids education, the high cost of buying a home etc. Whether or not gays can marry isn’t really a concern, especially given that we are now two years into gay marriage and nothing bad has happened.
The reason it wasn’t a priority was because the vast majority of the Massachusetts electorate doesn’t care about this issue.
<
p>
If the Republicans was to make this a big issue in the next election as well, I invite them to and in fact I hope they do. We’ll see where that strategy gets them.
Real people get hurt when this issue is hammered out in the popular media.
<
p>
I am convinced the assaults in Puzzles Lounge would not have occurred if Mitt had not been doing his very best to whip up every homophobe for miles around.
<
p>
This isn’t just gays. Any minority becomes vulnerable when they’re popularily depicted as the enemy. And if this goes to a vote, that is exactly what will happen.
People forget about stuff like Puzzles, then get worked up over what is and what is not proper procedure. Hello, what’s at stake here?
and neither are the tens of thousands of people in the U.S. who live sicker lives before they die prematurely, directly as a result of not having health insurance, an experiment in a petri dish.
<
p>
this from the 2004 national institute of medicine report “Insuring America’s Health”:
<
p>
“Lack of health insurance causes roughly 18,000 unnecessary deaths every year in the United States. Although America leads the world in spending on health care, it is the only wealthy, industrialized nation that does not ensure that all citizens have coverage
<
p>
so let’s make sure the equal marriage ban loses and the health care amendment wins their respective 50 votes on Jan 2.
Given that the health care amendment obligates the state to do nothing, and the gay marriage amendment obligates the state to prevent loving couples from getting married, I don’t think the harm presented by blocking either is quite equal.
Especially if there is a constituency that wants it done, which there will be on health care. As people learn about the new health reform law and its huge financing flaws that add new layers of wasteful bureaucracy and move us farther away from a functional affordable and sustainable health system that guarantees coverage for all, the more folks will want to vote for the language in the amendment and use it as a tool to bring sanity, humanity and accountability to our health care system.
<
p>
It won’t happen in a snap of the fingers but nobody’s expecting that. What it will do is to plant us firmly, with a constitutional anchor, on a health reform path directed by clear and publicly identifiable and accountable standards–those standards being the language itself
<
p>
“History tells us that legislation by itself is not enough. The employer mandate in the 1988 Massachusetts Universal Health Care Law was repealed before it was ever implemented. History also tells us that even a ballot initiative for a law may not be enough. The people enacted the Clean Elections Law only to be stalled and eventually repealed by the Legislature. The only major, progressive reform that has been fully implemented – education reform – has a constitutional anchor backed up by the Supreme Judicial Court.”
<
p>
the above quote is from the amendment campaign homepage
<
p>
BTW gay friends of mine, including married couples, have expressed a growing frustration around this artificial pitting of two human rights against each other and the nastiness it’s directing toward health justice advocates. knowing their sentiments and their unswerving support for universal health care as a right has been very helpful to me so i thought i’d share it with others in hopes it might help you too.
As Deval Patrick notes and Ryan Adams expands on, certain rights should never be up for plebiscites. Despite the specious claims of anti-SSM folk, SSM is a civil rights issue. Don’t confuse it with “constitutional” — a confusing screen.
<
p>
Quite a few rights could disappear or would never have been realized if the majority was asked, “Will you permit this minority or that to have the same privilege and special position in society and law that you have?”
<
p>
The answer is generally a resounding, “No!”
<
p>
We do need to exclude a small class of laws and rights from direct democracy. We have representative democracy and a balance of powers to ensure that we protect minorities.
<
p>
The anti-gay and anti-SSM folk who played the dishonest and dishonorable let-the-people-vote scam are mixing bagels and donuts.
<
p>
Let’s not allow that. No voting on other’s civil rights. No overturning court decisions by initiative drives.
Where will you be then. Court are comprised of people. People are appointed by elected representatives. The courts exist in the real world, not in a box … just look at the tenuous position of abortion rights.
as I pointed out before, are “those rights granted to you by the state, almost always by written statute, so that you may fully participate in our democracy. The right to vote, the right to petition for redress, the right to assembly peacefully – these are some of the civil rights we enjoy in this country.”
<
p>
You do not need to be married, or have the oppertunity to be married, in order to fully participate in a democracy. Absent a clause in our Constitution specifically granting you the right to marry, no right exists. This doesn’t mean that it is not a good idea, it simply means it doesn’t rank up there as a right.
“Absent a clause in our Constitution specifically granting you the right to marry, no right exists.”
<
p>
According to the Supreme Court of the US, and they should know, that clause is the 14th Amendment’s Equal Protection and Due Process Clauses. The Court held in Loving v. Virginia that
<
p>
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.”
<
p>
Further, “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
<
p>
So there you go. Marriage is indeed a civil right.
you’re confusing “civil rights” with “political rights”. “political rights” are held by all citizens in the country, and are those such as the right to vote. “civil rights” are ones that are held by all people within the United States, regardless of citizenship status, that are part of “equal protection under the law”. the right to enter into a civil marriage is one of those rights. the “new” right is that women have just as much right to marry women as men do, and men have just as much right to marry men as women do.
It’s not part of our constitutional tradition to hold plebiscites on whether to take away the rights of disfavored minorities. Courts are there to protect such minorities from oppression by the majority, and that’s what the SJC did in Goodridge. If Loving v. Virginia (striking down antimiscegenation statute) had been put to a popular referendum in the 1960s, it would have been overturned.
Structurally, there’s also a lot to be said for the view that any constitutional amendment of this nature should rest solely with the legislature, not direct democracy. Voters don’t have to look gays & lesbians in the eye and justify their vote to disenfranchise them. Legislators do.
Call it elitist if you will, but I’m not a big fan of government by referendum under any circumstances, and I agree with those posters who say it ought to be more difficult to amend the Mass. Constitution.
It’s not “constitutional rights,” as in, All rights found in this constitution, but civil rights or (especially) the right to equal treatment under the law.
<
p>
You are right to say that there is not such prohibition written into the state Constitution. But it is perfectly tenable to say that there should be.
<
p>
A constitutional amendment expressly banning amendments to abridge existing rights to equality would only apply to a narrow class of proposals.
<
p>
The U.S. Constitution prohibits less-fundamental things from being amended away. For example, you may not amend the Constitution to abolish the U.S. Senate (though you could axe the house!). Certain methods of electing the Senate would also be unconstitutional to even consider.
<
p>
Also note that such an amendment, despite its last-word-on-the-subject tone, would itself be subject to amendment. (It would take four years to do that, of course.)
<
p>
Personally, I don’t want any mechanism for the state to selectively take rights away–whether via referendum (as we do here in Massachusetts) or another system. So don’t see that “given the process we have here” it’s wrong or untenable to say that these very narrow amendments shouldn’t be prohibited.
<
p>
The idea that society gradually progresses, recognizes or adds rights, and does not go back, is an old-fashioned idea. A progressive idea. I suggest it is a worthy one.
as to whether a prior legislator or constitution-writer can ever really say “this section can never be amended.” So I question whether the section of Article V to which you refer (“no state, without its consent, shall be deprived of its equal suffrage in the Senate”) is really enforceable. Seems to me perfectly legit for the amendment process to first amend Article V to delete that clause, and then once that’s gone through 3/4 of the legislatures, go back and amend the Senate however you want.
<
p>
For similar reasons, I don’t agree with the ideas floated in your post. I don’t believe that the people of a long-dead generation should have absolute say over how government is organized today, nor do I believe we have the same right over future generations.
The best way to do it seems to be to say something along the lines of this:
<
p>
“Section V: Blah Blah Blah
<
p>
Section VI: To amend sections V or VI, you must have 80% of a popular vote and 70% of the legislators in three successive elections.”
<
p>
Truly obstructionist and a horrible way to write a constitution, but doable.
You could indeed amend away a provision that prohibits certain kinds of amendments. And then make an amendment that would have been prohibited.
<
p>
But–you’d have to do it in exactly that way. Which would be a big improvement.
<
p>
Look. To protect equal rights, the legislature just engaged in what you could charitably call a kind of civil disobedience, or brutally call a state coup. Some of us are not exactly comfortable with that.
<
p>
Right now, at BMG, you have many otherwise thoughtful people arguing that, because the outcome was good, the means are also good. This is short-sighted at best.
<
p>
You could sell me on “justified,” but never on “good.”
<
p>
I personally buy the argument that equality before the law should not be abridged by referendum–or indeed any legislative process.
<
p>
So especially if we rely on that argument to justify the extra-constitutional act of the legislature in preventing consideration of the bigoted but procedurally correct anti-Marriage amendment, I suggest we are obligated to test it with the voters. We should champion exactly that principle as an amendment to our own constitution.
So if you say there are certain subjects that should never be voted on, you are saying that there are certain subjects that should never be the subject of a constitutional amendment. To me, that’s not a tenable position.
<
p>
Of course it’s tenable, in so far as it’s a moral/ethical/political judgment. A purely legalistic framework is not the only way of looking at issues like this, and, in fact, can be the wrong one in many circumstances. (Personally, I’d take the word “constitutional” out of the equation if I were making the argument because that’s a term with a specific legal meaning. But I believe it’s clear to everyone what is meant.)
<
p>
To the extent that the concon is a political, rather than a judicial process, it’s perfectly valid for legislators to vote and act in accordance with such arguments. That’s what they are there for.
<
p>
It’s also appropriate for them to filibuster–which is what they have done in this case–when extraordinary circumstances call for it. We’re used to this happening in the US Senate all the time, but we’re not used to having it happen here. I’m not saying we should get used to it, but I certainly support and thank the legislature for doing so in this case.
i guess i’m in the “we shouldn’t put constitutional rights to a popular vote” camp, except i think David misrepresents the argument. i don’t think “no one should have the right to ever vote on civil rights”, which is approximately how David represents this position. i think “I don’t particularly care that the legislature used parliamentary tactics to kill the amendment, since I think it’s rather brazen to even propose the amendment in the first place.”
<
p>
in other words, the legislature is clearly empowered to decide what to do with the amendment, and that includes nothing at all. this is a stupid, presumptive, and hate-filled so i don’t care how it’s killed, so long as it’s legal.
let’s assume that it would be possible to collect 65,000 signatures to support a constitutional ban on African-Americans holding state employment or something. If that happened, do you think the lege would bury it? Of course they wouldn’t — they’d just vote, and the vote would be 0-200, so it would fail. It would take 5 minutes.
<
p>
There’s only one reason they’re killing this proposed amendment through parliamentary maneuvers, and it’s because they are worried that they don’t have the votes to kill it the other way. Yes, you think the amendment is “stupid, presumptive, and hate-filled,” and so do a lot of other people. But, apparently, there aren’t (yet) 151 legislators who think so.
<
p>
I mean, think about it. Almost everything in the way our democracy works depends on majority rule, whether it’s a committee vote, a legislative vote, or a popular vote. One of the very, very few exceptions is that only a quarter of the legislature is needed to advance an initiative proposal for a constitutional amendment. Do you really think it’s consistent with the constitutional design to allow that process to be shut down by a bare majority? Why would they have written in the one-quarter rule, if it were that easy to end-run it via a parliamentary maneuver like this one? Parliamentary procedures have been around way longer than Article 48.
The law sets 50% as the bar for a legislator-sponsored amendment, which may have the support of only that legislator. It sets a bar of half that for a CITIZEN petition which requires thousands of signatures.
<
p>
It seems that the intention is for it to be EASIER for a citizen petition to go the the electorate rather than a measure sponsored by as few as one legislator.
<
p>
The Legislature DOES have the right to vote the citizen petition down. It is required to consider it twice in consecutive sessions, so that there isn’t any hasty action taken, spurred by a particular event or temporary issue.
<
p>
OUR legislature has decided to take the most cowardly path. Since their Leadership nose counting has told them they don’t have the votes, they ‘recess’. They DO degrade their oaths, and they are wrong to so devalue the citizens of the Commonwealth.
Go watch Helen Mirren as Jane Tennyson in the last ‘Prime Suspect’ on WGBH.
<
p>
We ALL need a break!
and had been meaning to watch it 🙂
In California, all that is required is a certain number of signatures to get a question to the voters. Hence they have pages and pages of initiatives on every ballot, many of them conflicting and idiotic.
<
p>
Furthermore, there is a bevy of initiatives limited tax rates and growth that have passed. Others passed mandate a minimum level of spending. While the dollar figure of category one is not entriely below category two, it’s close enough that a bad year makes it impossible to fulfill the budget.
<
p>
This is what drove Davis out of office, and the reason why Ahnuld had to borrow massive sums to balance the budget through bonds. Initiatves have essentially made the state ungovernable.
OUR legislature has decided to take the most cowardly path.
<
p>
It seems flat wrong to call their procedural gambit cowardly. They aren’t motivated by fear, or by a desire to hide their vote from anyone. Every legislator has had to stake out a position and defend it through an election, most of them through more than one now. In two years, whoever among them runs again will have to answer to people such as yourself for this. The roll calls on all the concon votes re: marriage have gotten far more attention and distribution than any others that I can think of.
Majority rule is only one of the important democratic principles. Another is the right of a minority to make its case.
<
p>
In this case, the role of the joint session is to qualify amendments for the ballot. The slightly better “parliamentary procedural” analogy, if you really want to go that route, is to making and seconding a motion. The actual vote, in which the majority rules, is the referendum.
<
p>
It does not and should not require a majority to make a motion!
<
p>
I add that the multi-year, deliberative process for amending our constitution provides better, and more-democratic, protection against fads and the madness of crowds than supermajorities would.
If the lege passes a law that we the people don’t like, we can elect new legislators who will rescind or change the law to our liking. That’s a democracy, right?
<
p>
So, you claim that if the people or their elected representatives lack the power to change it in any respect, they lack the power to control and define their government.
<
p>
In MA, the people don’t lack that power. If we the people are unhappy with the actions the legislators took in the ConCon, we can elect legislators who will act differently. Isn’t this the same process as above? Sure, to change the Con requires more hoops, but ultimately if we don’t like the legislator’s behavior, it’s our job to elect different legislators. If it isn’t a high priority, we keep electing the same congresscritters, and we get the same results.
There’s the rub.
Right now there’s NO counter-majoritarian element to the constitutional amendment process at all. The SJC is the only state power I can think of which provides ANY protection for minority rights in any context (other than the good judgment of citizens, when available).
<
p>
As I said elsewhere, to the annoyance of some, such a situation totally sucks when YOU are the unpopular minority. I’m feeling like we need a few more hoops!
Some argue that certain kinds of issues should never be put to the ballot. Under those circumstances, it doesn’t matter who the legislators are, because no one can amend the Constitution to address those certain issues given our system. That’s what I find to be untenable.
Why should a bunch of dead men who wrote this document have so much power over us, anyway — and why should we be able to bind those who come after us with decisions in which they have no say. Wouldn’t it be better to make it easier to amend our constitution.
Why HAVE a constitution? And all these old laws and procedures?
<
p>
Why not have a clean slate, just decide which laws to keep or elimintate by having people vote…
<
p>
Oh.
<
p>
Never mind,
I mean, who needs things like free speech anyway? I want to live in a dictatorship where I get no rights and people tell me everything I have to do. Sounds good to me.
But you haven’t won yet, so for now he does have rights. And you can’t yet tell him what to do though you’re trying.
Frankly, I don’t mind that it’s so easy to amend the state constituion. It is widely understood in introductory constitutional law that American state constitutions are “working documents” that are largely meant to deal with detailed issues. They are intended to be easy to change to deal with new situtations, and to manage new issues.
<
p>
This is in contrast with most national constitutions (at least those dating before the 1940s) that are typically guidelines and ideals, and a limited set of instructions on changing and delineating the reach of politicians.
<
p>
As a working document, I think that the Mass. Constitution should remain relatively easy to change on most issues. Perhaps a better idea would be to raise the barrier to changing certain provisions or natures of provision, but to allow management of non-civil rights issues at a lower scale.
in the “excluded matters,” which refer to matters that cannot be addressed via the initiative. Maybe the marriage issue should be an excluded matter. But at the moment, it’s not.
<
p>
The states that have all those constitutional amendments on what type of bread is the state bread and what % to the point o o o should be taxed to whom aren’t exactly the states we want to duplicate – unless you think states red states have the leg up on our constituation, that is?
<
p>
<
p>
Constituions are NOT intended to be easy to change or “working documents.” That’s what you have LAWS for. If you allow constitions to become easy to change, they lose almost all of their significance and importance and cease to be the Constitution and become merely a constituion.
<
p>
PS: I can’t believe anyone is arguing we should have a weaker constition. HAVE YOU NO SHAME?
In a similar fashion, it is critiqued in philosophy classes that Plato argued that all objects had a certain essense. It is further critiqued in history class that World War II had causes beyond Hitler’s mood on a particular day.
<
p>
I never argued we need a weaker constitution — I argued that we should keep the one we have now. Why are you arguing to fossilize the current constitution because of an issue that was on few radar screens three years ago? Permanent change to respond to temporary circumstances is a rash solution. Scream at me all you want.
Just because it shouldn’t be easy doesn’t mean it’s going to be fossilized. Talk about hyperbole. If you have an issue you care about, chances are you can tackle it without a constitional amendment. Even the health care debate is on its way to being resolved via the legislative process.
<
p>
Constitions shouldn’t be convoluted. They should ensrhine everyone’s basic rights and how our government works in a nuts-and-bolts fashion.
<
p>
And I hardly call the rights of minorities “temporary circumstances.” Just as Rep. Byron Rushing said, he wouldn’t be thrilled to see his rights voted on in 1860 if slavery were up for debate.
<
p>
Nor would I say gay rights are anything new – we’ve been persecuted for the entirety of America’s existence and are just now STARTING TO EARN the respect we deserve as equals. Shame on anyone who would risk those hard earned rights.
<
p>
Here’s a message for everyone on this thread: stop being distracted. There are real issues at stake here and this is one big distraction. If we fight amongst ourselves on issues like this, we’ll divide our entire base. People alienate one group of the newfound progressive coalitions at the expense of the entire movement.
I knew that if we went at it long enough that we’d find common ground.
<
p>
I agree that the HCA as well as the anti-equality amendments shouldn’t be in the constitution. It’s bad law.
<
p>
But you can’t keep people from being people, and if you give a citizenry direct democracy, they’ll always end up using it in wacky unanticipated ways (Exhibit I: California. Exhibit II: Switzerland).
<
p>
I’m not saying gay rights or human rights are temporoary cirumstances. I’m saying the battle over them is a temporoary circumstance — you don’t see anyone pushing an anti-miscegenation referendum, do you? It’s a good thing that gay rights are now so prominent that people feel a need to fight them — it means the movement is achieving critical mass.
<
p>
That’s not because of procedural maneuvering, but because sustained exposure and pressure convinced a consensus of Americans that miscegenation was no big deal (unless it’s their family, it seems…).
<
p>
Bush still suffers legitimacy problems because his 2000 victory was procedural and not consensus — if nothing more. Had Bush won a clear victory, that would not be the case. By the same token, if marriage equality is secured through procedural maneuvering, then it will lack the conensus support it needs to be a long-term part of the legal framework.
That is exactly what our constitution does, and exactly why it contains a procedure for amendation.
<
p>
I once wrote that John Adams, when he failed to mention gay marriage, also failed to mention broadcasting and aviation but that didn’t mean he supported or opposed them.
<
p>
You want to enshrine rights as they exist today. Fair enough. Adams did the same. What about laws which prohibit things we take for granted today, but which become civil rights in the future, just like abolition and gay rights have? The rights of animals not to be consumed for food, or plants? That seems outre now, but gay marriage would have seemed equally ridiculous to John Adams.
<
p>
We are a nation of laws. Not the laws we like about the causes we support, but all laws. Gerrymandering and procedural skullduggery many temporarily prevail, but eventually decent voters are sickened by them.
<
p>
I sincerely believe that the DOMA would fail, which is why I think the vote should be allowed.
as evidenced by your statement:
<
p>
“Even the health care debate is on its way to being resolved via the legislative process.”
<
p>
that could not be farther from the truth
<
p>
and don’t just take it from me, fairdeal has an insightful analysis on it as well as excerpted here for ease:
<
p>
“… but for the healthcare amendment, i have to point out that there is a fundamental, baseline truth that dimasi and trav and their machinations are doing everything to obscure.
<
p>
and that is, by deep sixing the healthcare amendment, they are pointedly protecting the profits of the state’s private insurance industry and a handful of hospitals.
<
p>
so, why do you suppose they don’t just come out and say that they’ve got a little agreement with blue cross/blue shield and partners and aim that the healthcare amendment will not ever come up to a vote”
<
p>
BTW most of the public has been duped about the new health reform law too, thanks in large measure to the mainstream media’s lackluster spoon fed coverage. The Alliance to Defend Health Care has posted a variety of critical analyses on the Mass. Chapter 58 health law by policy experts from across the country.
<
p>
since i can’t get a direct link to the Consumers Union article that shreds the new law (pdf link is on Alliance homepage), i’ll give you a taste of it here:
<
p>
“A close look, however, reveals that the new law may well be a fantasy and a triumph for special interest politics after all. “It’s absolutely worthless,” says Dr. Marcia Angell, former editor in chief of The New England Journal of Medicine and author of The Truth About the Drug Companies. “There is no magic in Massachusetts.” The law is yet another patchwork attempt to dodge the main obstacle to reform–a fundamental lack of agreement about equity in healthcare. “
<
p>
Now more than ever, we need our chance to have a statewide vote on the health care amendment, because the health care debate is NOT on its way to being resolved via the legislative process. Some short-term help for the poor was accomplished and we supported those components, but in full measure that new law is doing quite the opposite of solving the crisis.
And I’m aware of many of the faults of the new health care bill. Like I said, I support the amendment on the table. However, they aren’t mutually exclusive. One has NOTHING to do with the other, so stop pretending as if they do.
<
p>
I said health care is on its way to being solved because of myriad reasons, the least of which is a health care bill that is an improvement over the status quo. For one thing, we have a citizenship who cares about this issue – the legislature will be held accountable over health care. For another, we have a powerful democratic governor coming into office who cares deeply about this bill (if anything, it could be his #1 priority).
<
p>
Our society will figure out the health care crisis. In the meantime, people are trying to put my rights to risk. I don’t take lightly to that.
<
p>
We could work together and focus on the common good. Or people like you could continue to swoop in and cause people like me to defend myself from otherwise progressive people. I’m sorry, but interest groups need to stop being interested in just themselves and join the greater movement. Unite or lose.
posting at 3:30 am is often a bad idea. First, your statement that “one has NOTHING to do with the other,” referring (I think) to the healthcare law and the proposed healthcare amendment, doesn’t make much sense.
<
p>
Second, your “unite or lose” theme is all very well, except that you seem to think that everyone should unite behind your position, because it’s (in your view) obviously the correct one. Sorry, but it doesn’t work that way.
<
p>
On the other hand, I’m all for working together to “focus on the common good.” So, as I posted in another thread, what is your proposal? How can the interests of those who want to bury the marriage amendment without a vote and those who want the lege to vote on the healthcare amendment be reconciled?
David, I was united behind the healthcare amendment – or at least I thought I was – until suddenly pro-health care people started lobbing bombs in my direction on BMG. And then got front paged. And then people with similar thoughts got the same. And then you added in with extra analysis, because there could have possibly been one or two people who regularly read BMG who didn’t know where you stand.
<
p>
My “Unite or Lose” theme works because – guess what – it’s true. And while it involves compromises from both sides, one of the things you don’t do when you’re creating a broader, progressive movement is unnecessarily attack people within your own camp – especially in a very public way. For starters, it isn’t going to help your cause at all. In fact, it’s probably done more to hurt it than anything else by creating a fractured division. I think your most recent post recognizes this point as it’s trying to get people to work together – and I appreciate your point.
<
p>
What the health care lobby SHOULD have done was reach out to gay and lesbian lobbies and tried to get as much support from them as possible. They represent hundreds of people going to ConCons every time there’s one held – they could be talking to their congressmen and reps on the phone, in person, through letters, etc. – about the health care amendment. That sort of grassroots activism is the type that changes votes for the better. Attacking each other is the type of divisive politics that lets legislators get away with doing the wrong thing.
all the lobbying in the world wouldn’t have helped, would it? The problem remains that for the marriage amendment to die, the health care amendment must die also. Do you think more lobbying of gay rights groups by health care advocates would have changed that somehow, or made the gay rights groups more willing to see a vote on the marriage amendment?
this will be, i imagine.
<
p>
you 2 should know that the hc campaign DID engage intensely and over a long long long period of time in an effort to work together with the gay rights groups. i cannot speak to all the intimate details of this but i am positive it took place.
<
p>
you could email barbara roop thru the hc campaign site if you’d like to learn more and share suggestions. and thanks so much for this constructive dialogue.
is allowing something that will amend the consititution to be able to get on the ballot with only 1/4 of the vote of the con. convention. At a minimum when there is a petition to amend the consititution it should require at least a majority of the con. convention to get on to the ballot.
<
p>
THe process needs to be changed that is all but you know at this point lets put the gay marriage ban on the ballot and vote it down once and for all.
Parliamentary procedure is part of the “process”. If people don’t like the outcome of the process they have recourse every two years. Although many people might argue otherwise the Legislature is supposed to be a deliberative body. After deliberating, its choice to vote or not to vote is part of the process. I think this is part of representative democracy.
I have been fascinated to read (and in some cases, listen) to the reaction to what the legislature did last Thursday. There has been much discussion, as there is now with this post, about amending the way the state constitution is amended. A couple of points.
<
p>
1. When the process works, the Mass. constitution is actually quite difficult to amend. That’s one of the reasons why Massachusetts saw one of the first gay marriage lawsuits. No one wanted to go through Hawaii all over again, where the courts did the right thing (in 1993, I think) and the public (shortly thereafter) did the absolute wrong thing in amending the Hawaii constitution to prohibit same-sex couples from marrying.
<
p>
2. Where is the hand-wringing over the fraud by which this amendment came before lawmakers? Thousands of people — we’ll never known exactly how many — were duped into signing the petition. Neither Attorney General Tom Reilly nor Sec. of State Bill Galvin investigated the fraud. Gay groups were loud on this, but I never heard a peep of protest about the fraud from the good government types now gnashing their teeth over “process.”
<
p>
3. Why isn’t anyone parsing what the state constitution says about petitions that seek to overturn judicial rulings? That is to say, the state constitution prohibits such petitions. Yes the SJC upheld Tom Reilly’s twisted logic that the petition didn’t seek to overturn Goodridge. But did anyone besides GLAD actually think the SJC was going to overrule Reilly on this? Especially after the heat they’ve taken on Goodridge? At least they fired a warning shot by noting that creating three classes of people in the state (heteros who can marry, homos who can’t and homos who married during the brief window of legality) would most likely be unconstitutional.
<
p>
The slogans people are tossing around — “let the people vote” and “don’t vote on civil rights” — really miss the point. If Attorney General Tom Reilly had done his job, this petition never would have been before lawmakers in the first place.
Thanks, Susan, for mentioning the hypocrisy in all this. If “process” is so hugely important, where were the drums beating when fraud was being committed en masse? It baffles me.
<
p>
And then I’m supposed to sit down and accept process? It’s okay that the process can be used against us, but when that process is violated that’s okay as long as it’s against us too? So strange, this world we live in.
Wouldn’t a person who believed his or her signature was obtained by fraud have standing to file a class action against the Secretary of State for certifying the petition? Wouldn’t that have been the obvious thing to do, instead of belatedly complaining about fraud that now, apparently, no one is able to prove? I mean, we can all argue about whether the fraud was or was not widespread enough to actually endanger the number of signatures, but it’s kind of pointless unless someone does something about it.
to have his name removed, contacted the S of S, the AG, Told no recourse. He was right pissed off, too.
I am sorry – but if I had signed the petition (as it happens I did not last time) and my name was listed and I was a public official – NO WAY would Reilly and Galvin telling me to stuff it have kept me down! If it was impriotant to me, of course. And if I really didn’t sign it, and it wasn’t just backpedaling after Know They Neighbor went into operation.
Then it must not have happened.
<
p>
From Bay Windows
<
p>
<
p>
This was also covered in the Daily Hampshire Gazette
<
p>
How much more simpler and polite it would have been to just ask for the cite.
<
p>
Further, if filing a private suit over the fraud in gathering the signatures would have made it more ‘real’ to you, then why not first research for yourself if there is a private cause of action before saying they should have done so. Further, how to file suit on something that can’t be found.
Some reactions to your three points.
<
p>
1. I agree with you on this, which is why I think the process should be allowed to work as it’s supposed to. Even if there aren’t 151 votes against the amendment now, I bet there will be in the next session with the loss of Travis, Goguen, Parente, etc. And even if there are, I bet the voters would reject the question. So, as you say, it’s hard to amend the Constitution.
<
p>
2. I’ve commented on this elsewhere, most recently in my response to Ryan.
<
p>
3. Reilly was right, and the SJC agreed with him unanimously. His ruling was going to be challenged either way, and if he had ruled the other way, they would have reversed him. So I really don’t see how far this gets you.
<
p>
Finally, I agree with you that “let the people vote” is bogus, because the legislature has a valid gatekeeping role to play. I just wish they’d play it.
The SJC said the AG was right on the grounds brought before him. THere were grounds that were not before them. Those have been mentioned before, and include those Susan mentioned.
On the fraud issue, that is absolutely important, and I’ve talked about it before. This is absolutely imperative that this be looked at. But us “good government” types are just as concerned about that as we are about a fair process for constitutional amendments, and as we are about stopping this from going to the ballot by voting it down fairly in the next session, or if neccesary, killing it procedurely then.
Legally, there has to be a procedure for any constitutional amendment to possibly get on the ballot. Saying so make no statement about whether any particular amendment should get on the ballot. If all you’re saying is “we shouldn’t have a process that makes it impossible for this to get on the ballot”, I agree, but that’s an empty statement.
<
p>
Morally, this is the sort of question that should not be up to a vote. That doesn’t mean it won’t be, but for people making moral arguments of the “let the people vote on it” sort, we argue that no, there’s no moral standing for that. There’s no special need for this to get on the ballot. That’s not the same thin as saying “this should not be allowed to get on the ballot.”
<
p>
I believe that this sort of question ought to be allowed to get on the ballot, because I haven’t heard of any better way to design a constitutional amendment process. I also believe that there’s no good moral case to be made that it should get on the ballot. That’s not a contradiction.
I agree with you. But some on this thread don’t, if I’m reading them correctly. Which suggests that my initial statement is not, in fact, “empty.”
<
p>
Your point about process is basically what I’m saying. Our process isn’t perfect, but it’s what we’ve got.
Since I really wouldn’t look forward to a ballot question on gay marriage, my emotional reaction to the ConCon has been one of relief.
<
p>
But let’s be honest: The intent of Article 48 is that the legislature vote up / down on qualified initiatives. Signatures are not the only factor that would qualify a potential ballot question. The issue of qualification is most relevant to the feeling that civil rights should not come up for a vote.
<
p>
Article 48 interestingly includes a laundry list of things that cannot be settled by ballot: civil rights (with the exception of religious matters) do not seem to be on the list. Article 48 also clearly specifies that citizen initiatives cannot be used to reverse judicial decisions.
<
p>
Both items have been pulled into the arguments over gay marriage. As the amendment has been worded to only ban same-sex marriages going forward after the ballot, O’Reilly argued that it would not reverse Goodridge since marriages prior to the ballot would not be annulled. I imagine that the next step for the anti-SSM folks would be to pull legal recognition from existing married same sex couples in every way possible.
<
p>
I wonder however if there is not a case to be based on the qualification that issues of religion cannot be settled by ballot. Just as Goodridge does not force the Catholic Church to recognize same-sex marriage, an amendment by citizen initiative could not tell the Unitarians (for example) how to ‘define’ marriage. (I was always puzzled about the need to ‘define’, instead of ‘recognize’.) Goodridge is quite clear that its scope is referring to recognition of civil marriage, but the wording of the proposed amendment does not to me at least explicitly refer to a marriage as a civil institution (I’m no lawyer, but am interested in other’s opinions or whether they have the same impression.)
<
p>
The other issue: based on these events you could come to the conclusion that it is Article 48 itself that is broken, and perhaps the best political course of action is to channel the ‘let the people vote’ anger into a reexamination of the initiative process as a whole. The vote count requirement for a citizen amendment to pass (25%) is belied by the fact that we’ve seen that a majority of legislators can table an amendment by inaction. I’m sure that even those who are outraged on this issue recognize that parliamentary manouevering is one of those things that can’t really be completely ironed out of any political system. We are for it when it benefits us, we are against it when it doesn’t. In the modern era, it is comparatively easy to gather 60,000 signatures for a ballot question, and some gating function is indeed necessary to avoid putting issues that should be handled by policy into our constitution.
<
p>
One irony in all this is that the amendment regulating the citizen initiative process was added to the Mass. Constitution as a early 20th century progressive reform. Like many well-intended things (we) progressives do in the name of reform, unintended consequences can arise as political / social environments change.
I did of course mean Reilly. Typo, really.
Should give you an indication of my warm feelings toward the guy.
The reason we have a judicial system is so that we dont have a dictatorship of the majority, it is the inherent responsibility of the judiciary to defend the rights of minorities.
<
p>
Imagine if we had a national referendum on Brown v Board in 1954 or a Boston referendum on busing in 1974. In both of those cases the numerical and political white majority would have voted against the inherent just rights of a minority group.
<
p>
Similiarly the same applies to marriage, it is simply unjust, unconstitutional, and unamerican to allow a voter to dictate the private affairs and rights of another. It gives straight voters far too much power to enable them to close what is essentially a religious and spiritual institution to a group of people.
<
p>
Its an inherently flawed idea, and Im surprised more progressives arent outraged.
“Tyranny” or “dictatorship” of the majority is just a pejorative way for libertarians to refer to “democracy”. They use the same argument to justify eliminating all forms of taxation and dismantling government entirely. Remember, the Goodrich decision is a correct interpretation of the Constitution, a Constitution that the majority of the public agreed to. Everything is ultimately majoritarian, and it should be. When the law requires more than a majority, that’s because a majority decided that certain votes should require more than a majority. If a majority doesn’t ultimately decide, then who?
<
p>
And, no, a national referendum would not have outlawed Brown v Board, because that is not the majority-agreed-upon process for amending the Federal Constitution.
<
p>
If we undermine the principle of majority rule, then we are in for a very undemocratic future.
“Remember, the Goodridge decision is a correct interpretation of the Constitution, a Constitution that the majority of the public agreed to”
<
p>
Have you ever voted to ratify the Mass. Constitution?
<
p>
I don’t even think it was ratified by a popular vote when it was created — even if it were, it would have been voted on by landowners, hardly a majority of the population of 18th century Massachusetts. Even the process by which an amendment can be added by citizen initiative was added more recently than most think.
<
p>
The point is that our democracy is based on the rule of law not the rule of the majority.
The Mass constitution was submitted to towns and ratified by a two-thirds majority.
<
p>
http://www.socialaw….
so not so much a majority. Not that I’m complaining (after all, I very much like our state con), just pointing out a fact.
This discussion is very interesting. The one thing I haven’t seen discussed is what people propose be done to force the legislature’s hand. Procedural maneuvers are as old as our Constitutional democracy (quite a bit older in fact) and have been employed more times that can be counted during our country’s history. In fact the 14th Amendment of the US Constitution which has been frequently cited in this discussion would have never been ratified if confederate states re-admittance to the union had not been procedurally linked to the ratification. At the end of the day, or in this case, at the end of the legislative session, the MA constitution allows the Constitutional Congress to kill an amendment with a non-vote simply because it provides no direct redress for doing so. There is no language in the text that grants it and the SJC has ruled that while a governor can force the legislature to stay in session, that no one can actually force them to vote, much in the same way that no one can force any of us to vote, or not vote. The redress for such action currently exists only in the political process of general election. If you don’t like the non-voters, don’t vote for them. I understand the displeasure that many are experiencing because they feel their rights are being violated, either by having civil rights brought to a referendum or by having constitutional procedures flouted. This circumvention by procedural means of an amendment to the state constitution may seem morally untenable to some but it is not, ultimately, legally untenable simply because the constitution does not provide a remedy for such action. There is no way to force the legislature to vote.
The SJC could declare that because procedure was not correctly followed, the amendments automatically advance to the next stage as if they had received the required 25% vote. The Health Care Amendment people appear to be arguing for this in their lawsuit.
…but unlikely considering how the SJC has ruled in the past:
<
p>
A judicial remedy is not available whenever a joint session fails to perform a duty that the Constitution assigns to it. Restraint is particularly appropriate here where Mass. Const. amend. art. 48 gives the Governor a role in seeing that a joint session carries out its constitutional obligations, but gives to the courts no enforcement role. When the purpose of Mass. Const. amend. art. 48 has been frustrated, the only remedy may come from the influence of public opinion, expressed ultimately at the ballot box. (Limits v. President of Senate, 414 Mass. 31)
<
p>
The SJC is not responding to a request here to by-pass the legislature but they seem to be stating fairly strongly that there is nothing they can do. The balance of powers in government is tenuous at times but, generally, the judiciary has restrained itself from circumventing legislative procedures.
the Constitution gives only the Gov and the Legislature the power to decide who can marry, with the latter getting the final say. The SJC didn’t seem to mind overstepping its bounds on that one when they ruled in Goodridge, maybe they won’t mind overstepping them on this one.
+++Procedural maneuvers are as old as our Constitutional democracy (quite a bit older in fact) and have been employed more times that can be counted during our country’s history.+++
<
p>
This to me is a very key point. I wouldn’t say I’m unreservedly happy about the existence of procedural maneuvers, but they have a long and august history and I doubt they’re going anyway any time soon.
<
p>
I refuse to feel guilty over the fact that in this particular instance, a cause important to me has enjoyed…not a victory exactly, but the wary satisfaction of having survived another day.
<
p>
Forgive me, but the health care amendment people seem to be saying in effect, that because some people are homeless and some of us have houses, we should gladly leave our houses and stand in the rain and hope someone shields us with umbrellas.
That there are certain things that cannot be the subject of constitutional amendments was tested by the Supreme Court a decade ago in Colorado’s Romer v. Evans.
<
p>
Colorado wanted to say that homosexuals could never have any civil rights protections and no legislature, state or municipal, could afford protections to that group of people. (Basically taking away the anti-discrimination rules passed by cities and a few state agencies.) The Supreme Court said that no state could use its Constitution to “deem a class of persons a stranger to its laws.”
<
p>
So, there are things that cannot be the subject of constitutional amendment, certainly not at the state level. Basically, amendments designed to strip a certain class of people of their rights would be anathema to a state constitution. Certainly, for example, no state could use its constitution to strip African-Americans of the right to vote.
<
p>
The bigger question is whether you could amend the national constitution to eliminate the right to vote for African-Americans. Technically, you could. Philosophically, however, the very act endangers democracy.
State Constitutions are always subject to federal limitations. So, of course, one could sue in federal court for a declaration that the anti-marriage amendment was in violation of the US Constitution. But no one seriously thinks that will succeed, do they? The problem we have is that MA law is out in front of federal law on this issue, so federal law is not likely to help the situation.
…but domestic arrangements are clearly state issues according to the federal constitution. The Supreme Court has no jurisdiction in this. Mind you, they may well find it anyway, but just because someone is a justice (ahem, Scalia) doesn’t mean that they’ll follow the law — they may rule on it just out of spite.
sure they do. The argument would be that the state is violating equal protection by allowing straight but not gay citizens to marry. That’s a 14th amendment issue. (It’s also a loser, IMHO, given the current Supreme Court.)
You wrote that the question was whether there was anything that was outside the constitutional amendment process: “Outlawing gay marriage, outlawing flag burning, outlawing abortion, it’s all fair game.” The answer is, for a state, it’s NOT all fair game. Period.
<
p>
The question then becomes, absent some federal constitutional conflict, is there some limit to the validity of constitutional amendments in general? While a more difficult question, the answer seems clear. There must be a limit there too. Do you think that it would be valid for the US government to take away the vote from African-Americans by constitutional amendment? Would it be valid to declare a non-democratic monarchy? To split the nation into two different nations, one North and one South?
<
p>
Some have argued that, at the very least, an amendment must “amend:”
<
p>
“It must not be something so entirely incongruous that, instead of amending or reforming it, it overthrows or
revolutionizes it. . . . [A]ny step in the direction of establishing a government which is entirely out of harmony with that which has been created under the constitution, or which is in the direction of taking the power of the state from the people and of substituting principles of government which were rejected when the constitution was established, though it may be taken in the most formal and deliberate manner, and in precise conformity to the method of amendment
established by the constitution, is inoperative in the very nature of things, unless it be taken expressly as a revolutionary proceeding, to be accepted if need be, and
upheld, by force. . . . We may amend indefinitely, but the amendments must be harmonious with the original structure.”
<
p>
Thomas Cooley, The Power to Amend the Federal Constitution, 2 MICH. Law Journal 110, 11820 (1893).
<
p>
I don’t have the bandwidth to set the precise outer limit of what, philosophically, can be a proper amendment and what cannot. But, I can certainly see that some things ARE NOT proper subjects for amendment. The examples I gave above cannot be valid amendments. Given that there ARE limits on what can be a valid amendment, it is certainly valid to have an argument about whether a gay-marriage ban is one of those things that is an invalid amendment.
But it’s not one that has been definitively resolved. My own view is, yes, as a legal matter, it would be “permissible” to amend the US Constitution “to take away the vote from African-Americans.” You’d have to repeal the 13th and 14th amendments, and possibly the 5th amendment as well, and then pass a new one. Of course, it would never happen, but it’s theoretically possible.
<
p>
The problem with the notion that there are outer limits to what’s permissible in the amendment process is that it’s entirely unclear who would enforce such limits. The Supreme Court? What possible legitimate basis does the Supreme Court have to decide that a certain constitutional amendment, duly enacted under the procedure set forth in Article V, is “unconstitutional”? It’s a bit of a contradiction in terms, isn’t it?
<
p>
There’s actually a concrete example here, which is flag burning. The Supreme Court held (correctly, in my view) that flag burning was protected expression under the 1st amendment. Several proposals to amend the Constitution to create an exception to the 1st amendment for “flag desecration” have very nearly passed Congress (the last one failed by 1 vote, as I recall), and there’s little doubt that if it ever gets out of Congress it’ll easily get 3/4 of the state legislatures. How could the Court possibly stick with its previous interpretation that the 1st amendment covered flag burning, given that the document would at that point have been changed? The Court’s job is to interpret the document. If the document changes, there’s not a thing the Court can do about it. Nor should there be.
<
p>
All of which is to say that I think Mr. Cooley, with all due respect to him, was wrong.