CLT UPDATE
Wednesday, November 7, 2007
Judicial vs. Legislative balance:
In Mass. will we "citizens" win or lose?
Arguing that the Legislature violated its
constitutional duty by failing to vote on a proposed amendment mandating
universal health care, the pro-amendment forces told the Supreme
Judicial Court on Monday that the initiative petition process would “die
on the vine” without an affirmative ruling.
Former US Attorney Donald Stern, arguing for the plaintiffs, said the
Legislature had “thumbed its nose” at the Constitution and told the
court it should instruct the Secretary of State to place the matter on
the popular ballot....
Justices appeared troubled by the idea that their December ruling had
gone largely ignored in the context of the health care amendment. The
court ruled in Doyle v. Secretary of the Commonwealth that while it
could not compel lawmakers to vote on a citizen-sponsored initiative,
lawmakers had a constitutional duty to vote on such initiatives. That
ruling preceded the Legislature’s vote this year to defeat the
citizen-backed amendment banning gay marriage.
Chief Justice Margaret Marshall said, “I don’t know of any case where
the court has … said, ‘This is your constitutional duty,’ and then when
somebody doesn’t carry it out, there’s no remedy.” ...
“The resolution of this case, the case now before the court, will
determine whether the people will retain that right or forever lose it,”
said Stern, now an attorney at Bingham McCutcheon. He told the court it
was facing “crunch time.” “The court has to decide whether Article 48
survives or not in the form intended,” Stern said.
State House News Service
Monday, November 5, 2007
Health care activists challenge high court
over role in amendment process
Citizens for Limited Taxation has no formal position on
either the marriage amendment or the health care amendment; our concern is the
process, that is used by conservatives and liberals alike. Barbara Anderson,
CLT’s executive director, is one of the ten signers of the Health Care for
Massachusetts lawsuit.
CLT
News Release
November 15, 2006
CLT Joins "Health Care for Massachusetts" Lawsuit
After Constitution is Violated by Legislature
"The courts of justice are to be considered the
bulwarks of a limited Constitution against legislative encroachments."
Alexander Hamilton
The
Federalist Papers, Number 78
Watch in streaming video the
state's high court in action:
November 5, 2007
Committee for Health Care for Massachusetts v.
Secretary of the Commonwealth
Chip Ford's CLT Commentary
The great decision now before the state Supreme
Judicial Court, argued on Monday, is whether the Massachusetts
Constitution's provision for the people to amend it will survive, or
instead will die ignobly from neglect and impotence.
If a renegade Legislature can ignore the Constitution
which every legislator took an oath to defend, with impunity in this
instance so far, what other provisions can it cavalierly ignore next?
If there is no balance of powers between the
Executive, Legislative, and Judicial branches in The People's Republic
of Taxachusetts, we have ceased to be free and self-governed citizens.
We will be nothing more than pawns, victims of varying political winds:
The rule of law will cease to exist in Massachusetts, continue eroding
with no end in sight.
Back on June 14, 1788, 219 years ago when this nation
was being founded, one of the architects, Alexander Hamilton, wrote (in
The Federalist Papers, Number 78) that it was within legislatures
where it was most likely that "the pestilential breath of faction may
poison the fountains of justice."
Proposals back then for a U.S. Constitution were
based on a model: The Constitution of Massachusetts. It was
previously adopted in 1780, drafted by John Adams, Samuel Adams, and
James Bowdoin. Our state Constitution is known as the oldest
functioning written constitution in continuous effect in the world.
When the state's high justices ruled in favor of gay
marriage, activists collected signatures to change the constitution to
define marriage as between one man and one woman. The Legislature
refused to take up that amendment in constitutional convention. The SJC
then ruled that Article 48 of the constitution REQUIRES a legislative
vote on all initiative petitions for constitutional amendments.
The Legislature did then take a vote, and defeated the marriage
amendment. But it did not take a vote on another initiative petition
that was on the same Con-Con agenda, and that petition died. CLT had and
has no position on either amendment. But we always defend the process as
written in the state Constitution, which we may want to use ourselves
someday. So we joined the suit in defense of Art. 48.
You may enjoy watching the video of The SJC hearing on Monday. The
pro-constitution attorney, Donald Stern (who in 1981 successfully
defended Proposition 2½ in court) makes an excellent case in defense of
the initiative amendment provision. Justices Marshall and Botsford asked
the right questions. We have hope that this issue of legislative action
-- or inaction -- on petitions will be resolved once and for all when
the SJC renders its opinion.
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Chip Ford |
The Massachusetts
Constitution, Article 48
As amended by
Article 81
Section 2. Joint Session. - If a proposal for a
specific amendment of the constitution is introduced into the general
court by initiative petition signed in the aggregate by not less than
such number of voters as will equal three per cent of the entire vote
cast for governor at the preceding biennial state election, or if in
case of a proposal for amendment introduced into the general court by a
member of either house, consideration thereof in joint session is called
for by vote of either house, such proposal shall, not later than the
second Wednesday in May, be laid before a joint session of the two
houses, at which the president of the senate shall preside; and if
the two houses fail to agree upon a time for holding any joint session
hereby required, or fail to continue the same from time to time until
final action has been taken upon all amendments pending, the
governor shall call such joint session or continuance thereof.
State House News Service
Monday, November 5, 2007
Health care activists challenge high court
over role in amendment process
By Jim O’Sullivan
Arguing that the Legislature violated its constitutional duty by failing
to vote on a proposed amendment mandating universal health care, the
pro-amendment forces told the Supreme Judicial Court on Monday that the
initiative petition process would “die on the vine” without an
affirmative ruling.
Former US Attorney Donald Stern, arguing for the plaintiffs, said the
Legislature had “thumbed its nose” at the Constitution and told the
court it should instruct the Secretary of State to place the matter on
the popular ballot.
Peter Sacks, an aide to Attorney General Martha Coakley representing
Secretary William Galvin, countered that a finding with the plaintiffs
would violate separation of powers law, and said two other political
remedies exist: electing lawmakers who would vote on such petitions, and
changing Article 48 of the Constitution, which governs the petition
process.
The plaintiffs, he said, are “really asking you to step into legislative
territory.”
Justices appeared troubled by the idea that their December ruling had
gone largely ignored in the context of the health care amendment. The
court ruled in Doyle v. Secretary of the Commonwealth that while it
could not compel lawmakers to vote on a citizen-sponsored initiative,
lawmakers had a constitutional duty to vote on such initiatives. That
ruling preceded the Legislature’s vote this year to defeat the
citizen-backed amendment banning gay marriage.
Chief Justice Margaret Marshall said, “I don’t know of any case where
the court has … said, ‘This is your constitutional duty,’ and then when
somebody doesn’t carry it out, there’s no remedy.”
The proposed amendment, which had attracted tens of thousands of
signatures in support, would enshrine in the state Constitution the
guarantee of affordable and comprehensive health coverage, what
proponents called a “constitutional anchor” to the sweeping health care
reform passed last year. In a Jan. 2 Constitutional Convention,
legislators voted 101-92 to bottle the measure in a special committee,
effectively blocking it from going to the 2008 ballot as a referendum.
That vote came less than a week after the SJC, responding to a suit
filed by then-Gov. Mitt Romney, handed down its ruling in Doyle v.
Secretary of the Commonwealth instructing the Legislature to vote on a
separate proposal to ban gay marriage. But a memo from the state Senate
legal counsel to lawmakers, which justices raised Monday, explained to
lawmakers that the ruling had no teeth.
By keeping the plan in committee, lawmakers dodged a vote on the
question itself, which had cleared a July 2004 session of the
Constitutional Convention by a 153-41 vote. But by July 2006, with the
health care reform law on the books, the vote came down 118 to 76 to
reroute the measure to a special committee.
Lawmakers pushing against the amendment said the Legislature should
refrain from amending the constitution and give state officials time to
implement the reform law, which supporters claim will deliver
near-universal health insurance access. Insurance is now mandatory for
most adults in Massachusetts, with tax penalties about to kick in for
those who remain uninsured and who lack exemptions. Recent estimates
suggest hundreds of thousands of Massachusetts residents still lack
insurance, although state officials say the uninsured ranks are
diminishing.
On Monday, the seven-member court drilled Stern with questions over how
the court should resolve its case while doing less harm to the
Constitution than the Legislature had, agreeing with Sacks that Article
48 holds no recourse for the SJC if lawmakers refuse to vote.
“The resolution of this case, the case now before the court, will
determine whether the people will retain that right or forever lose it,”
said Stern, now an attorney at Bingham McCutcheon. He told the court it
was facing “crunch time.” “The court has to decide whether Article 48
survives or not in the form intended,” Stern said.
Sacks said that the plaintiffs’ plan of action would violate not just
Article 48, but Article 30 as well, which holds, “the judicial shall
never exercise the legislative and executive powers, or either of them.”
But Sacks conceded that he was unaware of an SJC case where a “remedy”
had not been eventually realized.
The sparsely attended Monday-morning hearing was in sharp contrast to
the crowded hearings over the various same-sex marriage cases. One
lawmaker in attendance, Sen. Steven Tolman (D-Brighton), said the case
could have been avoided by voting on the amendment, of which he was a
prime backer.
“My argument all along is we should’ve taken a vote on the issue,”
Tolman said. He said he was “not so convinced” the court could not order
Galvin to send the question directly to voters.
Explaining the Constitution
The Federalist Papers
Checks and Balances
The Federalist Papers also provide the first specific mention we have in
political literature of the idea of checks and balances as a way of
restricting governmental power and preventing its abuse. The words are
used mainly in reference to we bicameral legislature, which both
Hamilton and Madison regarded as the most powerful branch of government.
As originally conceived, the presumably impetuous, popularly elected
House of Representatives would be checked and balanced by a more
conservative Senate chosen by state legislatures. (The 17th Amendment,
added in 1913, changed this provision to mandate the popular election of
senators.) On one occasion, however, Madison argued more generally that
"office should check office," and Hamilton observed that "A democratic
assembly is to be checked by a democratic senate and both these by a
democratic chief magistrate."
In his most brilliant essay (Number 78), Hamilton defended the Supreme
Court's right to rule upon the constitutionality of laws passed by
national or state legislatures. This historically crucial power of
"judicial review," he argued, was an appropriate check on the
legislature, where it was most likely that "the pestilential breath of
faction may poison the fountains of justice." Hamilton explicitly
rejected the British system of allowing the Parliament to override by
majority vote any court decision it finds displeasing. Rather, "the
courts of justice are to be considered the bulwarks of a limited
Constitution against legislative encroachments." Only the painstaking
and difficult process of amending the Constitution, or the gradual
transformation of its members to another viewpoint, could reverse the
Supreme Court's interpretation of that document.
NOTE: In accordance with Title 17 U.S.C. section 107, this
material is distributed without profit or payment to those who have expressed a prior
interest in receiving this information for non-profit research and educational purposes
only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml
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