Our Constitution was ratified 227 years ago Saturday. It seems appropriate to note the occasion given the continued importance of this document to the way we live, and the passions engendered by implementation of its procedures.
The Massachusetts Foundation for the Humanities offered a neat summary of the historical process that produced the document. The Foundation concluded that its author, John Adams, wanted, a “government of laws, and not of men,” and that our Constitution is, “the oldest written constitution in the world still in use.”
These phrases are repeated so often one almost does not notice them, but they are misleading. First, the “laws not men” slogan has matters back to front — much though lawyers might like citizens to believe otherwise, and stop kvetching. As the recent debate over marriage shows, our laws and rights do not exist in a vacuum and are not immutable, they are made by people. Civic engagement is critical, and ultimately determines how we are governed. The people voted on marriage last week through their representatives — good (and good also that they voted the way I personally think they should have).
Second, our Constitution is, “the oldest written constitution in the world still in use,” only in the sense that Davy Crockett always used the same knife (first he replaced the blade, then the handle, then the blade …). In fact, the Massachusetts Constitution is constantly being revised: who knew before Goodridge that all adults were free to marry here? The SJC realized that was the case, now the people’s representatives have confirmed it. Old man Adams guaranteed slavery as an immutable right of Massachusetts property owners, and locked women out of the electoral process — thank goodness that Constitution isn’t, “still in use.”
The reason we should celebrate the birthday of our Constitution with enthusiasm is because of its flexibility: the Governor, the legislature and the Courts all have a role to play in the implementation of the laws but ultimately the people, acting directly or through their representatives according to the constitutional procedures anyone can read, govern themselves.
That’s the difference between conservatives and progressives isn’t it. Progressives believe the constitution is a set of down markers that can be moved forward at will. Conservatives believe that the only way you can change the constitution is by actually changing the words in it.
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The government of Laws not Men is absolutely spot on.
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And before you go impuning John Adams reputation any further you should know that John Adams was a lifelong opponent of slavery. The Massachusetts Constitution neither confirmed nor barred the practice of slavery. In one of its first cases of judicial review the SJC in 1783 abolished slavery as not compatible with the constitution. A position John Adams would have been proud of.
…is not one person who actually knows the reality of how law is interpreted and administered who believes that a Constitution is useful only to the extent the the words within its frame can be literally interpreted. Seriously, not even Scalia. Strict constructionism is a conservative myth. Funny how most conservatives are disgusted by the concept of a constitutional right to an abortion but have no issue with the interpretation that corporations are “virtual” persons deserving of all rights and protections as natural persons. Where is that in the document?
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Corporations are groupings of people for commerce. So it is natural to extend the protections granted to people to people?
…fictitious persons (corporations) and flesh-and-blood persons.
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Limited liability.
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The shareholders–that is the flesh-and-blood persons who ultimately control the fictitious persons–are not liable for the debts of the fictitious persons that they control. Flesh-and-blood persons don’t have that privilege for their personal debts.
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Considering corporations as being “persons” for some purposes is a useful fiction. But not for all purposes. BTW, as far as I can tell, it has been a long time since a court ordered the death penalty (i.e., corporate dissolution) for a corporation that caused the death of a flesh-and-blood person.
So you’re in favor of group marriages then? Funny — you folks always blame us liberals for wanting to destroy marriage.
Maybe this will help you out. From Emancipation of Slavery in in Massachusetts: A Reexamination 1770-1790 by Elaine MacEacheren. The Journal of Negro History, Vol. 55, No. 4. (Oct., 1970), pp. 289-306:
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As to our man Adams, he didn’t like slavery, and was glad to see it go, but he wasn’t so offended by it that he thought it worth taking much pro-active action to eliminate. The fact that there were slaves in Massachusetts before our Constitution was adopted, and slaves in Massachusetts after our Constitution was adopted, fits Adams’ attitude toward slavery quite well, in my opinion. It is rather like W’s attitude toward the prison camp at Guantanamo Bay and the incarceration there of hundreds of people without charge or trial: he says he doesn’t like it, but he doesn’t actually do much to stop the practice. But maybe you’re not familiar with the prison camp at Guantanamo. I recommend this short six-page article: “John Adams’s Views of Slavery,” by John R. Howe, Jr., in The Journal of Negro History, Vol. 49, No. 3. (Jul., 1964), pp. 201-206.
I wrote a short paper for a class on the Quock Walker case & the roots of the abolishment of slavery in MA back a couple of years ago, so I decided to dig it up. A few things I thought were kind of interesting I found in there:
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-As far back as 1641, the code of Massachusetts Bay said that the only permissible slaves are those taken in a just war, or who were “willingly sold,” which allowed for indentured servants.
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-According to Chief Justice Cushing, by April 1783 slavery was, ?as effectively abolished as it can be.? Yet historians still debate whether this case truly ended slavery at all and some say it was Bromm & Bett v. Ashley that truly confirmed the end of slavery.
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-Importantly, the abolishment of slavery was most purported not by lawyers arguing that slaves were to be equal under the law, although that was certainly crucial in the Quok cases, but rather ministers who preached that blacks were equal under the law of God. Important to Puritan ideology was the idea of “election,” which roughly means that only a “chosen few were admitted to the covenant.” Cotton Mather, for instance, believed that nobody could know who with certainty was of the “elect,” and that may include blacks?a radical and egalitarian idea for its time.
You know, I never considered this, and I’m glad the article mentions it. There was no seamless king-to-constitution progression. The break with England happened before any governing body was in place to pick up the slack. We all know this. But was we (or I) often fail to appreciate is that this was a troubling and, for some no doubt, terrifying situation.
…the earliest elected legislature in what eventually became the United States was the House of Burgesses (established 1619), and the Massachusetts General Court was established in 1630. Both long before the American Revolution.
In fact, the Massachusetts Constitution is constantly being revised: who knew before Goodridge that all adults were free to marry here?
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I’d put it this way. Based on the Massachusetts state constitution, newly enacted in 1780, a slave in Massachusetts demanded his constitutional right to freedom. And the activist judges* of the Massachusetts judiciary agreed with him. In the Goodridge case, the activist judges of the Massachusetts judiciary determined that the state’s denial of the right of same sex couples to marry violated the very same provision of the 1780 Massachusetts constitution.
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Why didn’t the Massachusetts judiciary determine the fact that the denial of same-sex marriage rights violated the state’s constitution earlier? Maybe because nobody had asked them to. Just as if, if Quock Walker, subject of the cited page, had not asked the Massachusetts judiciary to declare slavery unconstitutional in Massachusett, there might still be slavery here.
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*lest anyone wonder, my usage here of “activist judges” is sarcasm.
Hmm. How likely is it, do you think, that the right of same-sex couples to marry would have been recognized in 1780?
…How likely is it that voters, when ratifying the state constitution in 1780, would have recognized that they were abolishing slavery in Massachusetts? A mere three years after adoption of the constitution.
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I have read that one of the chief worries of those voting on the 14th amendment to the US constitution was that the equal protection clause would have required states to allow inter-racial marriages. According to those tracts, the proponents of the 14th amendment said, no, that would not happen. Lo and behold, a hundred years (or so) after ratification, the US Supreme Court struck down all legal impediments to inter-racial marriage.
I think it is very unlikely that voters in 1780 were thinking much at all about slavery. I refer you, however, to the website of our own beloved state government:
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“Active judges” meme to the contrary, the court did not invent new rights or “redefine” marriage. Rather, it found that the rights had always existed but had been wrongly denied. At least, that is the explanation at the heart of our legal system.
It is at the heart of the legal system, so long as one imagines that the function of the legal system is to dream up hitherto unimagined rights.
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Treating Goodridge as if the SJC had a “look what we found, something that has always been here but hitherto unknown!” moment is a technical truth, but manifestly misleading statement that would be worthy of Ari Fleisher’s liberal twin.
The Health Care Constitutional Amendment
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Massachusetts ConCon Denies the Health Care Amendment a Final Vote on Its Merits
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June 2007 update:
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A case is pending before the State SJC requesting the courts to enact a remedy to the above described travesty of justice. Donald Stern, Esq., a former Assistant US Attorneys General is representing the plaintiffs in this case, of which I am one. It looks as thought the case will be heard in September, 2007, by the SJC. The most appropriate remedy would be for the Health Care Amendment to be placed on the 2008 statewide ballot, as there is ample evidence that well over 50 legislators were prepared to vote yes had it been granted its second due Yea or Nay vote at the January 2 ConCon.
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To summarize, on January 2, 2007, 101 members of the Massachusetts Legislature defied their constitutional duty (to grant the HCA a second up-or-down vote on its merits) and these same 101 public servants flagrantly denied the citizens of the Commonwealth our constitutional rights as defined in Article 48 of the Massachusetts Constitution.
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This cannot and will not be tolerated.
Maybe you can get all of the principled folks who want to “Let the People Vote” (strictly out of concern for following the constitutional process, mind you, not an ounce of homophobia in the lot).
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Fresh off of their victory in ensuring that the legislature follow its obligations, they should be energized and ready to defend the Adams parchment from yet another threat!
Maybe you can get a tsk tsk from the SJC that will nudge the GC to act, if not actually force them.
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I doubt that the SJC can legitimately put something on the ballot that has not recieved the GC’s vote.
Could the SJC rule and “suggest” the following:
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That the Secretary of State (SOS), who is Bill Galvin at present, holds the legal authority to carefully examine the evidence (including interview the >50 legislators who were denied the opportunity to follow the law and to vote on the merits, and who wanted to vote “Yes” on the HCA), and decide that it is fully reasonable under the circumstances to exert the authority of that office and that the SOS can place the Health Care Amendment on the next statewide ballot?
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btw over the last 10 years SOS Galvin has publicly acknowledged, in print media and in public meetings, that the peoples’ needs and will have been repeatedly trampled by corporate healthcare companies here in Mass., hc corporations that are “non-profit public charity” corporations at that, to add insult to injury!!
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After all, the SOS is a public office whose duties include overseeing and enforcing the proper democratic and legal processes of citizen initiative petitions.
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Right?
…I have trouble seeing what remedy the SJC can constitutionally provide. If memory serves, they have previously ruled that the constitution requires the GC to vote on a constitutional amendment submitted by initiative petition, but that there was no remedy that the SJC could provide if the legislature refused to do so.
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The legislature voted on the anti-gay-marriage petition, but refused to vote on the HCA petition. If the legislature had refused to vote on the anti-gay-marriage petition, do you really believe that the SJC would have provided the petitioners with a remedy? I sincerely doubt it.
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One last point. After I first learned of the HCA–from you–I read it. You might want to re-consider the language. I’m sure that the proponents mean well, but it is so nebulous that I couldn’t imagine any legislator in his right mind voting in favor of it, except out of emotion. If the legislature were to want to seriously consider a bill at the statute level–which would probably go on and on for pages–I’d consider supporting it. Contitutional amendments such as this are in the same class as the problem I noted elsewhere regarding California.
It was exceedingly carefully crafted by a team of constitutional lawyers, clinicians, policy wonks and advocates.
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The HCA language is accompanied by legal-type footnotes that explain in great detail what the merit is of just about each and every phrase in the entire darn thing! I think it’s very tight and precise.
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I very sincerely would appreciate and value your specific critique.
…but you deserve a response.
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Preliminarily, the proposed constitutional amendment would be a lawyer’s delight. I could see a lot of litigation over what I’ll describe below, particularly in regards the notes. It should be noted that the notes do not form part of the proposed amendment and are not legally binding, but I’ll let that issue pass.
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Re (1): I sympathize with the education analogy, but I note that the state has essentially submitted control over education to the city and town level, except for some control where the city or town is clearly not performing (read Springfield). I’m not sure how the education analogy might work with the proposed HCA.
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Re (2): “Voter approval” is nothing more than a referendum process. The constitution provides for that already. The constitution also provided for an initiative process for a statute. There is no need for a constitutional amendment to provide for either.
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And, let me posit this to you: what happens if, during the referendum process, some of the “stakeholders” convince enough of the voters to vote against a program that does not sufficiently enrich them? (That’s largely what happened with the Hillarycare proposal in the early 1990s.) What is the legislature to do? Amend the proposal to enrich them? If you believe that I am joking, I can ensure you that I am not.
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Re (3): It is a bit of a stretch to go from “no Massachusetts resident lacks” to the idea that the HCA is intended to “reduc(e) disparities in health status among Massachusetts residents, containing costs, preventing cost shifting and simplifying administration of our health care system.” The language of the amendment says nothing of the latter. As to the second bullet point, would it require the state to set up a clinic convenient to residents who currently are not being served.
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Re (4): “Comprehensive” is in the eye of the beholder. The first bullet point seems to contradict “comprehensive,” since it implies that “comprehensive” is not necessarily comprehensive, since it is limited to “the best value for resources allocated.” The resources that are allocated may not be as “comprehensive” as some might consider to be “comprehensive.”
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I’ll skip over the second bullet point, and move to the third “Requires coverage for effective screening and disease prevention services.” I am not personally opposed to that, but, going back to (2), suppose the voters don’t approve the legislature’s referendum that provides for what some consider is required for “effective screening and disease prevention services.” Does that mean that the courts can step in and order those “effective screening and disease prevention services”? As I mentioned, this proposal is a lawyer’s delight.
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No issues with the fourth and fifth bullet points.
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Re (5): “Affordable” is, of course, in the eye of the beholder. I’m not going to analyze this in detail, but I’ll note that I have stated here many times before that the health care financing system in Germany is far superior to the US model: they provide health care that is at least as good as that in the US, at much lower cost–both in terms of per-capita spending and percentage of gross domestic product. Everyone who is a legal resident of Germany is required to have health insurance (as well as home-care–so-called Pflegeversicherung), and the government run program is government organized, not single payer, but they cover everyone. Everyone who is employed, and who earns below a certain threshold income level pays the analog of a medicare tax (split with the employer). People who are employed, but who earn above the threshold can opt out of the system–provided they get private insurance (and the privat Krankenversicherung market is thriving). People who are self-employed are required to go to the private market, and people who do not qualify for the government-organized program are as well. The unemployed are covered by the government-organized program. Everyone, except for the unemployed pays at least something.
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I guess that the above (Re (5)) also covers much of (6), but I’ll mention two things. One, “assumes” and “implies” in the bullet points are not particularly helpful. Two, “tax expenditures” suggests that the legislature could be required to appropriate monies to fund a proposed program. We have seen what measures like that have done to the difficulty of finalizing a budget in California.
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I don’t have much of a problem with items (7), (8) and (9).
i’ve just got back from being in DC and NH with the “Scrubs for SiCKO” nurses and doctors campaign with Michael Moore at SiCKO premiers and press conferences and will re-read your comment tomorrow and share them with barbara roop, too. she’s the JD, PhD (in comparative health policy) who co chairs the HCA campaign along with john goodson, a senior level primary care doc at MGH. i’ve been deeply involved in the HCA since before day one of the campaign, fyi.
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for now i’ll say that even with your concerns, the HCA still has huge merit in that it forces us to address this issue collectively and in a much more publicly transparent way than the legislative “process” would ever allow (back room deals and lege leadership arm-twisting, blackmailing members pending bills etc).
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from my experiences working in hc for 30 years (15 as a nurse), from having countless pts as well as chronically ill family members chewed up and spit out by the hc system, from being a social justice activist/ political activist, i am so acutely aware of the realities of our broken hc system and our broken political system, that in full balance the HCA’s potential pros vastly outweigh the potential cons that you pose, imho. (whew, that’s a long sentence but i’m too tired to edit it)
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the MA leges — of which there are many — who do actually want to do the right thing and move hc from a commodity model to a public good/ public stewardship in financing model would have the means to engage the public to help them achieve those ends and to reduce the influence of the hc cartel if the HCA existed. It would be a tool for them and for us.
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from talking with deval patrick 3 times during his campaign i think he might also fit into this last category of public servants who share the goal of hc as a public good not a commodity but who need the public to create the political space to pursue it. due to the money involved in hc, achieving the needed far-reaching reforms will indeed bring on a battle of epic proportions. but it’s a battle we must take on. this is a moral imperative that we have been denying for FAR TOO LONG IN THIS COUNTRY. See the film SiCKO and then let’s “talk” again about the HCA.
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thanks for your thoughtful and detailed comments.
sincerely, ann at the Alliance to Defend Healthcare (soon to be named the Alliance for Health and Social Justice, to better reflect our work)
(I know I am a bit late, this bugged me a couple of days ago but didn’t have the time to write a comment.)
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I think you are misunderstanding the “government of laws” line that Adams wrote. You need to put things in the perspective of the time. Adams was referring to the monarchy system he was rebelling against. A system where a man, the king, made up the laws as he went and decided when to enforce them. Adams “government of law” was one where all of the laws would apply unilaterally and that a man, even the king, could not make the laws or decide which laws he would follow. This lead to the checks and balances in our current system (more on that in a minute). The executive branch can not make the laws, the legislative branch can’t enforce the laws, etc. The division of power that serves to prevent the types of abuse of power that lead to the Revaluation.
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To that end, the example you gave of the recent marriage debate is a perfect example of the what Adams was after in a “government of laws, and not of men”. When the SJC ruled that preventing same sex marriage was unconstitutional, the man in the corner office was very much apposed to the ruling. But because of the checks and balances of the system, Romney could not simply decide not to allow same sex marriage. His power was limited by the “government of law”. This is also why many conservatives, such as myself, who are not tainted by the religious right, supported same sex marriage. It is also why the system worked as it should. A group of citizens used processes allowed to them, the partition initiative, and the legislator voted on it as required by our governmental system. If people have a problem with the result of the vote, they can make that known on Election Day.
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As to the checks and balances in our current system, this is a huge problem that has seemed to be largely ignored by both sides. The Bush administration is currently doing things that are eroding those checks and balances. As this Globe article from the other day pointed out, Bush has expanded on the policy of signing statements with the various laws that cross his desk. I signing statement accompanies bills that the president signs into laws. Traditionally, these were used to congratulate the various law makers and other parties involved with the bill. This is nothing new. But Bush has issued more signing statements then his farther, Clinton and Reagan combined. More over, Bush is using the signing statements to say the he doesn’t believe the various laws apply to him and that he will not comply with them. This is a huge abuse of power and he is using his position as Commander in Chief against the war on terrorism as justification for these abuses. Bush is illegally consolidating power in the executive branch. This is the exact type of situation that Adams and the other founders had in mind when they were concerned about a government of man.
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By the way, if this is sounding familiar to any of you good liberals, it is because Al Gore?s new book ?An Assault on Reason? spends some considerable time on this subject. (I am only about ¾ through it, so don?t spoil the ending for me.) Al covers it far better then I have, I can?t believe I am writing this, so I recommend that anyone who is interested read this book. In honesty, I didn?t like ?An Inconvenient Truth? but I am enjoying this book.