2. The argument that I have seen in Mass Equality ads and elsewhere on this forum that “it is wrong to vote on rights.” This can’t possibly mean what it says on its face, but even if suitably limited (maybe, “it’s wrong for a democratic majority to vote to restrict the fundamental rights of a disfavored or protected minority”), it still seems wrong. Take affirmative action in education. Let me give a hypothetical. I assume that everyone would regard voting as a fundamental right. I also assume that immigrants are a protected class insofar as the courts have applied heightened scrutiny to legislation that discriminates on the basis of alienage. There have been proposals to allow non-citizen immigrants to vote in local elections. Would anyone argue that this is not an appropriate matter for democratic decision-making? Maybe someone would, but it seems to me that someone making that argument would not really be in the American small-d democratic tradition.
Another example: presumably freedom of speech is fundamental. The First Amendment protects pornography but not obscenity. Suppose the Supreme Court reversed its precedents and held that obscenity was protected. Would anyone argue that a democratic super-majority could not amend the constitution to override the decision, even though it would restrict a fundamental right?
The problem with these kinds of arguments, which has been argued before, is that they require supporters of same-sex marriage to rely on the fickle courts and discourage progressives from even attempting to form democratic majorities in favor of their policies. Speaking personally, I also think these arguments are at odds with the notion of popular sovereignty (partially, but not completely, subject to constitutional roadblocks) that is the basis of our constitution.
Thoughts?
If you were around these parts in January, you know that BMG people had at it on the supposed antidemocratic practices of those who oppose sending the anti-marriage amendment to the voters.
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I think, as a matter of constitutional responsibility, our legislators have the duty to examine proposed amendments, not just rubber stamp them because they are citizens petitions. It’s worth remembering how pernicious this proposed amendment is. Here’s the text:
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“When recognizing marriages entered into after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage only as the union of one man and one woman.”
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Assume for the moment this amendment gets its votes, goes to the people and wins (an asumption I’m not willing to make in real life). The amendment creates two classes of same-sex couples: those who were fortunate enough to find their life partners before 2009, and those who were not. In addition,someone could be married under current status, become widowed, and be unable to remarry.
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This proposed amendment exists in its current form because its proponents knew that a majority of Mass. voters would not be cruel enough to annul the marriages of the almost 10,000 couples who are now married. The amendment is a cheap political trick, by my lights. I’m unwilling to be a process purist on this one.
I agree that the legislature must exercise its judgment and that it should vote down the amendment (though I do think they must hold a vote on it and that they were wrong not to vote on the health care amendment at the last constitutional convention). There’s nothing undemocratic about that, in my view, since the idea of roadblocks to amendment is built into our ideas about constitutions. (But on the other side, consider Professor Amar’s view of extra-constitutional methods of amending the Constitution).
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I also agree that if the amendment became part of the constitution, it would be a rotten thing.
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All that said, where is it written that the constitution can have no rotten provisions? Sometimes the arguments about this tread dangerously close to natural law theories that sound great if we’re talking about Martin Luther King but maybe not so great if we’re talking about, say, former chief justice Moore of Ten Commandments fame.
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It seems to me that you either believe in constitutional government and the people’s sovereignty and accept the notion that government will never be perfect, or you don’t.
with you that “[b]y definition, a provision of the Massachusetts constitution cannot be unconstitutional under Massachusetts law,” consider the following curious passage penned by Justice Greaney (and joined by Justice Ireland) in Schulman, the case in which the SJC certified the anti-marriage amendment:
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Greaney sure seems to be arguing the possibility that the amendment, even if duly adopted by the people pursuant to Article 48, might be “unconstitutional” for some other reason. It’s a truly odd opinion.
That by putting this in the context of “The Adams Constitution” they could spawn the argument of whether John Adams would ever have approved of or accepted same-sex marriage as a protection that his constitution conferred?
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As much as the forefathers were visionaries in rights and liberty, I’m not sure that they would have been receptive to same-sex marriage. They probably though it so ludicrous a notion it would be unnecessary to include.
If the voice of the people is the voice of God, then it is surely sacrilege to suggest the power of that voice has limits.
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But in a polity in which there are private rights, the assertion that there are and ought to be limits on the power of the majority to define and limit the fundamental rights of individuals is not only intelligible, it is essential.
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Your freedom of religion may entitle you to believe otherwise, but thank goodness for the separation of church and state!
I don’t think we disagree about what the law should be. The Founders, to the extent they were influenced by classical ideas about democracy, would have said that the answer to your concern is to have a well-educated citizenry that would understand why it is important to protect minority rights. Ultimately, they would have said, the power to change the laws has to rest in someone’s hand, and they preferred to put it in the hands of the people rather than in the hands of a smaller group. (This is an oversimplification, and the constitutional debates were largely about how directly the people should be able to exercise their power). They also would have realized that democracies and republics were in constant danger of decline if the people lacked sufficient civic virtue. I don’t think popular opposition to same-sex marriage in the Commonwealth, if it exists, is a sign of impending doom, but maybe it’s a warning to do what we can to educate the people, who ultimately have the lawmaking power in their hands.
The “classical” notion of democracy that held sway 200 years ago was that it was mob rule, that the franchise should be limited, that checks and balances were necessary, that the power of government should be limited, and that some rights were fundamental and not subject to abridgment by a majority.
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I do not agree with all of these sentiments, but I think you are guilty of perhaps projecting your own political ideals romantically onto history.
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I agree with your suggestion that political power ought to “trickle up,” at least in the long run (and I believe it does so even against political systems that would thwart that). Nonetheless I think that protections and limits are appropriate.
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In any case, before I want the majority of my fellow Bay Staters to vote on whether to intervene in the private institution of marriage, I want to vote on, say, the salaries of CEOs, the fees charged by telecom and energy companies, and the practice whereby insurance companies determine how doctors may treat illnesses and injuries. Al those in favor…!
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Actually I don’t want to vote on all of those things, but my point is that it’s especially wrong to insist on popular sovereignty on this issue, which disproportionately affects a small minority, but not on others.
You don’t understand the argument about voting on rights. You can vote on rights that affect everyone equally (such as prohibition or obscenity). You can vote on rights for minorities of choice (such as members of a certain profession or people who have particular hobbies), although some people would argue that even that should not be allowed.
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What people are claiming is not acceptable is having people vote to restrict the rights of a group of people when membership in that group is not something people choose. Homosexuality is not a trait that people choose to have or not have, it is just a trait that people either have or don’t have. If you are gay, you are gay for life. It isn’t a disease that can be cured or a lifestyle decision that you can change if you want to. It is not fair to tell people that because of something they have no control over and can do nothing about, they don’t get as many rights as other people. It is even more unfair to allow the entire population to vote to take away the rights of a minority when that minority has already been using that right.
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The claim has been made that never before have people voted on whether they should remove a right from a minority. I do not know if this is true, but the well known examples of voting on minority rights (such as women’s suffrage) were cases of voting to extend rights to a minority, rather than voting to remove rights from a minority while letting everyone else keep them.
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Immigration is different because as long as the laws change slowly, immigrants moved here knowing what laws would apply to them. As long as there is a naturalization process, immigrants can become regular citizens. Gay people cannot go through some process to become straight. They didn’t decide to be gay after considering how it would affect their lives.
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Affirmative action is also different. With affirmative action, some minorities are given special privileges. If affirmative action were ended, it would not remove rights from a minority that the rest of the population would continue to have, but would instead make it so that everyone has the exact same rights and privileges (which does not necessarily make things more fair).
I’m with you from the point of view of fairness. Behind the veil of ignorance, people would probably choose to allow gays and lesbians to marry, knowing that some percentage of the population is gay or lesbian. This is the reason why, as I said in my initial post, I would vote to amend our marriage statutes if I were a legislator.
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But I think you have missed the point I tried to make. I assume you would agree that it would be appropriate to codify the right to same-sex marriage, either in our statutes or in the constitution. If you do agree with this, then it seems to me you must concede that the question is an appropriate one for democratic decisionmaking. I don’t think it’s tenable to say that it’s okay to vote on expanding rights but not to vote on contracting them. Instead, you have to say that rights should just be removed from the democratic decision-making process altogether and left to the courts. This is the danger in the Attorney General’s remarks and the point I meant originally to attack.
to say that it should be unconstitutional to take away rights.
….statement is untenably conclusory:
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What is being conveyed by the sentiment that it is not acceptable to vote on rights is that it is not acceptable to allow a majority of citizens to vote to take away fundamental rights from a minority that the majority will continue to enjoy without being adversely affected by their own actions. This principle existed when our Constitution was written and has been born out innumerable times throughout the history of our nation.
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There is as you say no blanket support for the statement that rights should never be voted on if ?rights? are defined in the manner that you have defined them, but your argument only works if you completely change the intended meaning of slogan being used by marriage equality proponents. It is a catchphrase, not a term of art and your treatment of it as the latter is disingenuous and unsupportable.
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Yes, we vote on rights all the time and doing so is appropriate, especially when they are being granted. What the Constitution does not tolerate and never has is limiting fundamental rights to exclusive segments of the population at the expense of political minorities who are not in a position to protect themselves from the tyrannical majority.
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That of course begs the question ? Is marriage a fundamental right and is that right offended by denying gays access to it? Personally, I say yes. That question, however, has not yet been answered by the only branch of the government qualified and empowered to answer it ? the judiciary. Your statement that the court should not be engaged to answer questions of fundamental rights is fundamentally flawed.
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Do you see the circularity in this? If the constitution is amended by the necessary vote to limit a fundamental right, then, by definition, the limitation of that right is constitutional. That doesn’t make the majority’s action right, or fair, but it does mean that arguments such as the Attorney General and Justice Greaney have made are wrong and probably nonsensical. It also highlights the importance of education, organizing, etc. in dissuading the voters from foolishly writing discrimination into the constitution.
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I think you’re right about distinguishing rights, in the broad sense of entitlements of one sort or another, from fundamental rights of a minority. In earlier comments, I gave examples meant to show that even when we define rights more narrowly, as you would like, it’s still permissible to vote on their existence. Maybe I’m right on this, maybe not.
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I don’t agree with your argument that the fact that the majority is not affected when it votes to limit the rights of a minority has importance. Take the constitutional right to a free public education. It’s certainly bad policy (in my mind) for empty-nesters, retirees, etc. to vote to starve the public schools in their towns of funding. But is there something illegitiate about such a vote just because the majority of the voters are not directly affected? I think you could come up with lots of similar examples.
….example regarding funding of public education is a bad analogy. As long as funding is not cut off completely no fundamental right has been abridged and no minority has been denied access to their education. There is, perhaps sadly, no fundamental right to the highest quality public education. I suppose in a similar vain there could be a vote to raise the minimum age to get a marriage license to 20 and that would not necessarily infringe upon anyone’s right to marry, but raise the age only for women and now you have a problem.
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This is also circular logic. If the MA Constitution requires that all citizens be given equal protection under the law and then an amendment is passed that limits such equal protection without explicitly amending and limiting the fundamental right to equal protection then there is an unsettled tension that must be dealt with by the judiciary. There would be two choices, determine that there is no longer a fundamental right to equal protection for all citizens and keep the amendment and its implicit limitation thereto or determine that equal protection is so fundamental to the Constitution of the Commonwealth that it cannot be frustrated without being explicitly overturned and since any frustration of equal protection in the marriage amendment is only implicit it cannot stand.
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That is the problem. People are limiting the fundamental right to equal protection and/or due process of law of a minority and not frustrating those rights for themselves. If there were two amendments, one that took away these rights and then one that limited marriage, that would burden everyone equally. Of course, obviating equal protection would never survive a federal challenge so here we are at the same question. In Massachusetts, can the majority remove equal protection and due process guarantees from a minority in any measure or degree by constitutional amendment? The ONLY honest and correct answer to that question is that it is for the judiciary to decide. Any supposition on your part that the exercise of passing a marriage amendment is constitutional under the Constitution of the Commonwealth is purely conjectural. If the amendment were to be passed and if it were challenged, that would be a case of first impression for the SJC and they are the ones who are empowered to decide, not the legislature, not the executive and not the electorate. The basic foundation of your argument, that the courts shouldn’t decide is flawed because they are the only ones empowered to do so.
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Anthony, in your view would it be “constitutional” to repeal the Fourteenth Amendment (including the Due Process and Equal Protection Clauses?) Assume that all of the requirements of Article V are satisfied.
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If your answer is “no,” then I guess we have a really fundamental disagreement that I’m not even sure how to address except to say that I think you have somehow talked yourself into the view that the law necessarily is what the law should be.
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If your answer is “yes,” then I think you are simply wrong about how a court would construe a constitutional amendment that carved out an exception to a general right that existed in the constitution at the time of the amendment. It seems clear, to me at least, that a court would hold that the more specific provision (the anti-same-sex-marriage provision, in our case) would trump the more general provision, that the later provision would trump the earlier provision, and that in any case where (as here) the intent of the amendment (i.e., to overrule Goodridge) is sufficiently clear, the court would construe the amendment to give effect to its intent. I could be wrong, but that’s how I see it.
…it would not be federally constitutional for a State Constitutional Amendment to repeal the protections of the 14th Amendment because of the Supremacy Clause. I have of course been speaking solely about State constitutional construction because that is the actual issue at hand.
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I haven’t talked myself into any view of the law except that it is the SJC’s job to decide what the Constitution of the Commonwealth means.
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You can think I’m wrong all you want, it is your prerogative. The simple fact is that you do not know any more than I do how the SJC would construe the marriage amendment should it be passed. I think you will agree however that the SJC would make a decision if it was passed and challenged. So whether they rule as you suspect they will or rule to strike the amendment they will rule. They will have the final say, so your assertion that the courts are not an appropriate place to determine the scope of fundamental rights is incorrect.
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That is my only point. Your assertion about the courts’ role in rights adjudication is fundamentally flawed.
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Everything else is a matter of wait and see.
Obviously a state cannot repeal or refuse to abide by any portion of the federal Constitution. But by referring to “Article V,” Ted is clearly asking whether the Congress and the several states, pursuant to the terms of Article V of the federal Constitution, could permissibly repeal the 14th Amendment. In my view, obviously they could, just like the Congress and the several States enacted, and then repealed, the 18th Amendment. Article V gives the people (through their elected representatives) ultimate control over the content of the Constitution, and, it seems to me, no provision adopted according to the procedures of Article V can be “unconstitutional.”
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What do you think of the flag-burning amendment? If the Congress can ever muster the necessary votes (which I hope they never do, though it’s been really close), they’ll pass the flag-burning amendment to the states, and apparently 3/4 of the states would quickly pass it. That would write into the Constitution an “exception” to the 1st Amendment’s guarantee of free speech. I think it would be a terrible idea, but I think it would be obviously constitutional, and that it would then be permissible for Congress to criminalize flag burning, the 1st Amendment and the Supreme Court’s decisions in Johnson and Eichman notwithstanding. Do you disagree?
….re: Ted’s question which, respectfully, I understood completely, was that we are not talking about US Constitutional Construction or jurisprudence, but rather the Constitution of the Commonwealth.
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As to your question about a Flag Burning Amendment, I am not convinced that it would be obviously constitutional, although that is certainly a potential outcome without doubt. It should also be noted that the “exception” you describe would apply to everyone equally, whereas the marriage ammendment would not, so it is a bit of an apples and oranges comparison. It would be for the Supreme Court to decide, however, which is, in a nutshell, my point. The Court gets the final say regarding the meaning of the Constitution.
Ted, you seem to argue that since the majority could do this, it has the right to do so.
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That because, under the language of the Constitution and the common parlimentary law, there is a mechanisms by which a majority could strips rights from a minority, it must be acceptable to do. I disagree
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The AG seems prepared to argue that since it would be wrong, it is not permitted. I do not view this argument with a lot of hope, but there are common-law principles in its favor. I could see how it might prevail.
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Whther or no, it is wrong take away rights in this way.
I actually don’t entirely agree that it is ok to vote on expanding rights to reach the entire population equally, but only because I think voting no on such a proposal is always unacceptable. It goes against natural law for people to be denied or granted rights on the basis of things they have no control over (such as ethnicity, sex, or gender). There have been mistakes in the past where people put bigotry into the legal system. All of that should be removed. There is no need for people to vote on expanding rights to the entire population because the courts should do that as soon as someone points out that it hasn’t already been done. But if people prefer to vote to treat everyone equally instead of having the courts resolve the problem, they should be free to do so.
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The legislature can choose to amend marriage laws and other laws to specifically say that they apply equally to everybody. But it doesn’t matter, because having the laws say anything else would be violating natural law and the state constitution, and the courts would have to correct the mistake as soon as someone asked them to.
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Natural rights are just that: natural. The government does not have the authority to define your rights. It has the duty to protect them. Only a tyrannical government would attempt to restrict any rights to some subset of the population.
And who decides the content of these “natural rights”?
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That is, by the way, a serious question — I’m not being snarky.
In this particular case, it doesn’t matter who decides what they are. The point here is that everyone should have the same rights. If people were voting to end all legal privileges of marriage, that would be fine (because it would apply equally to everyone). I would be opposed to it, but I would consider it something legitimate for the government to be doing.
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In general, society has to decide which rights are to be considered natural rights. The Declaration of Independence has a good section on this topic. The whole document basically says that people are free to overthrow a tyrannical government if the government fails to protect their rights. It was one of the major themes of enlightenment thinking.
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Natural rights are defined by people. Everyone will disagree on which rights qualify. But there are some things that are generally agreed on in any society. The purpose of government is primarily to protect the rights that people feel should be protected. If you find yourself in a society where everyone disagrees with you about what rights you should have, you have to either convince people that some right they are ignoring is important, accept that it actually isn’t, or move to a place where that right will be protected.
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There can be no justice in a society which treats people differently on the basis of things beyond their control. If the proposed amendment was going to say that people shorter than 4’10 couldn’t get married, nobody would seriously consider letting it be voted on (even though that is probably a smaller minority than homosexuals). It is impossible to morally justify giving different people different rights on the basis of traits they have no control over. This is the sort of thing that should be declared by the UN. It is actually in the US constitution (in the 14th amendment), which should be enough to declare that this amendment is unconstitutional because state constitutions can’t violate the terms of the US constitution.
….don’t decide what natural rights are, the courts do.
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If the people decided that we would be in a heap big mess of trouble.
There are afterall only 2 rights: rights to property and rights to autonomy.
I’m not sure I’d be terribly comfortable with the courts making their decisions based on “natural rights” that they pulled out of — where, thin air? Are you suggesting that a court would ever have the right to invalidate a duly-enacted law, not because it conflicted with a written constitution that it had a sworn duty to interpret and enforce, but because it violated “natural rights”?
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If judges are to be unelected and unreviewable — and that’s pretty much the system we’ve got — then they’ve got to be constrained by a Constitution if we’re to maintain any shred of democratic legitimacy in the system. If they can start issuing unreviewable decisions based on “natural rights,” then all bets are off.
on “natural rights” definitions pulled out of…somewhere? I’m thinking of the NY and WA state supreme courts who found some “for the children” nonsense reasoning in barring marriage equality. Other state supremes have done the same, although I can’t recall just who at the moment.
but the decisions you’re talking about didn’t invalidate legislative enactments, did they? My point is that if courts use “natural law” to overrule actions taken by the democratically-elected branches, we have a problem. That’s a different argument from saying that the reasons given by courts to uphold legislative actions are weak.
AFAIK the court decisions i was referring to did not overrule legislative decisions. but they did use “natural law” type arguments to ignore the principles of equality in state the constitutions. so rather than using n.l. to invalidate legis decisions, they drilled down to a more fundamental level and used n.l. to invalidate/ignore the constitution itself.
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at least, that’s how it comes across to this non-lawyer.
…is that at the end of the day, legally speaking, the Court will decide. They may dress it up as rooted in the text or the penumbra of this or that or based on long held and deeply rooted traditions, but that is what they do. They decide on rights, the legislature legislates and the peope elect the legislature.
… are indeed ‘natural’, doesn’t that mean that they exist independant of people’s opinion? That would mean that they are not (and can not be, by definition) ‘created’,… only ‘discoverd’ or ‘interpereted’.
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In our system, interpertation, is primarily a function of the judiciary, no?
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This, of cours, assuming ‘natural’ rights exist at all.
…..point. Trying to distinguish ‘natural’ rights from legal rights is a silly exercise. Both are human constructions and the former only has effect when incorporated into the latter.
… want to go back and review the Clarence Thomas confirmation hearings. I remember there being a lot of talk about natural law. Probably a good idea to review Bork on this as well.
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I’m pretty much in agreement.
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I think the status of ‘natural’ rights as being, if they objectively exist, independent of opinion makes them necessarily too subjective since they can only be ‘interperated’ and not ‘discovered’. Such an ‘interperatation’ of a ‘natural’ right relies necesaryily on opinion external to the text in the law itself, and thus external to whatever can be gleaned of the intent of the legislature.
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Then you’ll really see activist judges.
Wasn’t Lawrence a case of the court finding that there was no due process because by defiition, there could never be a due process to go against the ‘natural law’ which gives people dignity and sweet mystery and all that? Aren’t they saying that dignity comes from natural law, and any law can be overturned on due process grounds if the justices feel the law rubs natural law the wrong way?
The courts decide what your legal rights are. The people decide what their natural rights are and then make sure the government is protecting them. If the government fails to protect people’s natural rights, the people will complain to the government. If things get bad enough, the people will rebel against the government. Read the Declaration of Independence for an example of how people declare their own natural rights and expect the government to take care of protecting those natural rights, to the point of declaring a government invalid if it fails to protect those rights or especially if it violates those rights.
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People disagree on what natural rights should be protected. There is enough consensus about the top priorities that people can manage to put up with most of the disagreements over minor ones. People in general agree that freedom of speech and religion are natural rights. People mostly agree that owning property is a natural right.
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An example of disagreements is the abortion debate. Almost everyone agrees that people in general have a right to live. Almost everyone agrees that people have the right to decide when they will have children. The courts have declared that a fetus does not qualify as a person, so the women’s right to decide not to have a child overrules whatever right to live the fetus may have. The people disagree over whether a fetus counts as a person, so those who feel that the courts got it wrong are working to change the government until the legal rights line up with their concept of natural rights. Those who agree with the court’s decisions are working just as hard to make sure that the legal rights do not change (because they already agree with their concept of natural rights).
…until the day of the governmental overthrow the legal rights are all you have to hang your hat on and it ain’t the people who make that decision.
We would not be in the predicament that we are now if the LGBT Leadership, MassEquality et al had sold the public, including the LGBT Community on this being an Equal Rights Issue. We missed that chance and now we cannot go back.
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We lost a good chunk of the LGBT Community when we “sold” this as Marriage, chose perfect plaintiff couples, and did not include many within the LGBT community. Then we changed path and used “the sky didn’t fall” argument, and the “8000 couples have married argument”, we are trying the “if you don’t kill the amendment the Dems will lose the 2008 Presidential seat” argument.
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At least Coakley’s stand has a shadow of the equality argument in it again.
…would not be in this predicament, we would be in a completely different one.
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This was never going to be easy.
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I have never lost the sight of the fact that this is an equal rights issue. The good news is that here in MA there was already substantial equality in the law save marriage and its attendant benefits. It was the last long bridge to cross.
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I have no regrets.
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My fraternity (Sigma Chi) in its Creed says “To Know That You Have Fought The Good Fight.” That I also have never thought of this as anything BUT an Equal Rights issue kept me “fighting the good fight” and am proud of what we did.
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I would not have been able to have had the guts to start KnowThyNeighbor and post the names of the signers of that nasty petition if I did not consider this an equal rights issue. And I would not have been able to deal with the asinine criticism (including here at BMG) if I had not remained focused on really what was happening here–discrimination at its greatest.
…there has been mention above of “natural rights” and “natural law,” but these are religious concepts, not legal concepts. Both “natural law” and “natural rights” are quite surreal, and it would take a tome to point out the fallacies regarding them, both of logic and of fact, but the fact is that they have nothing to do with temporal law.
Again, projecting one’s own political ideals onto history.
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It is one thing to argue, perhaps, that theories of natural law and rights are ultimately not rational, but quite wrong to say that they have nothing to do with law. These theories are deeply embedded in Western thought.
Thanks, everyone, for the interesting discussion (encouraging for my first Blue Mass Group topic!) What I take away from this discussion is that there are some people in favor of same-sex marriage (e.g., me and maybe David) who think that the proposed amendment should be rejected, either in the legislature or at the polls, but that if it is adopted, there is no challenge to it available under Massachusetts law, because of the way we understand the effect of a constitutional amendment.
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There are others who think that if the amendment is adopted, it would be open to challenge under Massachusetts law.
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Both positions have been well argued above. I would like to make a practical and tactical plea for my position. In my humble opinion, the other view is so obviously wrong that it runs the risk of making it appear that supporters of same-sex marriage are willing to take extra-legal means to the desired end. This point has already appeared on several right-wing blogs responding to Attorney General Coakley’s remarks, for instance, here, here, and here. Also, I think that someday the shoe will be on the other foot and people on the left may wish they had stuck closer to what I will (maybe rashly) call the orthodox view that a constitutional amendment, validly adopted, is by definition constitutional.
….a challenge to an amendment would be successful is one thing but to claim that there is no challenge available is incorrect. The people can always challenge any law or amendment. That is a right that no amenmdment or law will ever take away. To say there is no challenge available under MA law fundamentally undermines the basis of govt of, by and for the people.
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I recomment you read the SCOTUS decision for Romer v. Evans. It is irrefutabe proof that this statement –
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is wholly erroneous.
My point may have been ambiguous. I should have said there is no challenge under Massachusetts law to a Massachusetts constitutional amendment. Romer, if I recall correctly, was a federal constitutional challenge to a state constitutional amendment.
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(I realize I may have inadvertently confused you, Anthony, when I asked for your views on whether the Equal Protection Clause could be repealed. My purpose in asking that question was not to interject any issues of federal law into the discussion of the Mass. same-sex-marriage amendment, but instead just to sound out your views generally on whether the people have the power to set up a constitution that lacks what we would say are really fundamental rights).
…confused, and to limit the discussion to just the MA constitution is a specious exercise since it ignores reality. As to Romer, there is no reason why the SJC cannot overturn a marriage amendment based on US Constitutional law. MA is, after all, part of the USA. If, however, it comes down to it, I think the Justices of the SJC would prefer to rule based on the Constitution of the Commonwealth so that their decision cannot be challenged in front of the SCOTUS.
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Secondly, there is always a challenge. The right of the citizenry to challenge the constitutionality of any law, governmental action or constitutional amendment is sacrosanct. Whether or not that challenge will prevail is a matter for the courts. The fact that you choose words that tend to obviate this most fundamental right is in a discussion about fundamental rights is odd.
Of course someone could bring a federal constitutional challenge to the amendment in the Massachusetts courts (or in the federal courts). But as I wrote earlier:
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Maybe I?m wrong about what the U.S. Supreme Court would do, but as a practical matter I see little chance for successful federal constitutional litigation here, at least at present.
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Your comment raises a point that hasn’t already been discussed. In one sense, you’re right to say that the challenge is a “matter for the courts,” insofar as the SJC or some other court could issue a decision that holds a constitutional amendment unconstitutional. But my point is and has been simply that such a decision would be wacky, untethered to precedent, and beyond the pale of what I and I think others would regard as legitimate judicial decisionmaking, given the understanding of constitutionalism and popular sovereignty argued earlier. I don’t think its too much to say that a decision along the lines Justice Greaney suggests would provoke a constitutional crisis.
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How is this for a summary of our difference of opinion: I view the courts as a creature of the constitution, deriving their powers from the constitution and thus lacking power to abrogate a constitutional amendment validly enacted, no matter how odious. You view the courts as the guardians of fundamental rights of minorities, empowered to insist on the protection of those rights even when the people, through the amendment process, have decided to limit such a right. Is that fair?
…is fair, but it is nonetheless incorrect as to my point of view.
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I do not view the courts as the guardians of fundamental rights of minorities, empowered to insist on the protection of those rights even when the people, through the amendment process, have decided to limit such a right.
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I view the courts much as you do. Where we disagree is on whether the marriage amendment would be constitutional. You are resolute that it would be simply because it was validly enacted. I believe that there is a colorable argument that the amendment is not constitutionally acceptable because it limits the rights to equal protection and/or due process to a particular class and those rights can never be abridged in that manner even by a validly enacted amendment.
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But at the end of the day I am fine with those different points of view. Should it be an issue, I would leave it to the courts to decide because that is what our democracy requires. What I had a problem with from the start was your suggetion that petitioning the courts for these decisions is somehow undemocratic. That is, to repurpose your words wacky, untethered to precedent, and beyond the pale.
…A state constitutional amendment (which was under consideration in Romer) is subject to the limitations of federal law, including the federal constitution under the supremacy clause of the federal constitution.
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Hint: one thing that I learned at my last corporate engagement is that an expansive explanation is more useful than a more limited one. That is one reason why my comments are longer than many.