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Massachusetts Liberal

Observations on politics, the media and life in Massachusetts and beyond from the left side of the road.

Thursday, December 28, 2006

Civil disobedience

The Supreme Judicial Court has ruled unanimously that the Massachusetts Legislature has an obligation to vote on all matters placed before it during a Constitutional Convention and failing to take that action violates the lawmakers' oath of office.

Let's deal with three issues quickly. Over at Media Nation, Dan Kennedy has raised a proper question: how does the presiding officer deal with a valid motion to recess?

Based on my admitted non-lawyer reading of the decision, every Legislature since the creation of Article 48 has violated the state Constitution because, to the best of my knowledge, items have been pending on the calendar when every Constitutional Convention expires.

Finally, what would the SJC have done if lawmakers had simply placed the question at the bottom of the calendar and never taken it up? That action also falls within the Legislature's rules. If those rules violate the Constitution, as the SJC seems to suggest, what is the remedy?

So, on to the ruling itself. The SJC made crystal clear it's belief that lawmakers who fail to vote on the question will have to answer to a higher authority, the voters:
Today's discussion and holding on the meaning of the duty lays any doubt to rest. The members of the General Court are the people's elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth. Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote by yeas and nays on the merits of the initiative amendment (or by other procedural vote of similar consequence), ultimately will have to answer to the people who elected them.
For legislators voting their conscience in refusing to allow a final vote the response should be "bring it on." Because they can make a compelling case they are rejecting an effort that can clearly be labeled "tyranny of the minority."

First, let's deal with the argument that 170,000 people signed petitions seeking a ballot test. That's about three times the minimum of 65,825 registered voters but still a sliver of the 4.1 million people signed up to vote, roughly 4 percent. There have also been some serious questions raised about the legitimacy of the signatures collected by an organization that collected $1.50 each in this act of "citizen participation."

Then we have a requirement that 25 percent of the Legislature present and voting in two successive sessions approve the initiative before voters pass judgment. The low thresholds were designed to encourage voter participation, but as is clearly the case here, those thresholds can be used by ideologues (left and right) to manipulate the system.

Legislators voting their conscience and refusing to place on the ballot a question clearly designed to strip a group of people of the rights granted to them by the very same SJC are therefore practicing a well-respected action known as civil disobedience.

It's a tactic used honorably by people through the history of this Republic to oppose legally-sanctioned slavery, the refusal to grant women the right to vote and to assure equal rights denied to African Americans in the South during the 1950s and 1960s. It was also used to protest the previous unjust war waged by the United States.

What's different in this case is the effort being made to use the law to strip existing rights. That's why the sides are reversed and elected officials are making a stand -- apparently against the law -- to protect a higher principle.

They should be applauded for their courage to stand up to bullying and intimidation from a small special interest group seeking to impose its own religious viewpoint on the rest of us. The voters of Massachusetts should not have to make a decision about what is right or wrong -- we've elected people to do that. This is one of those rare and courageous times where they have done the right thing -- despite the abuse heaped upon them.

3 Comments:

Blogger Harry said...

The civil disobedience argument you make here is weak and, quite frankly, sophomoric. Let me note just a few points:

First your disagreement regarding the threshold number of signatures (a constitutional provision that has been satisfied) and the 25% approval threshold are both disagreements with the present constitution itself. Citizens are allowed to petition the ConCon to modify these provisions, or are you a “cafeteria constitutionalist” and prefer to pick and choose the particular provisions of the constitution that you will follow?

Second you write:
Legislators voting their conscience and refusing to place on the ballot a question clearly designed to strip a group of people of the rights granted to the[sic] them by the very same SJC are therefore practicing a well-respected action known as civil disobedience.

So, then, both citizens and legislators must all obey the SJC when it perceives and declares new rights in the constitution, but legislators must disobey the same SJC when it perceives and declares constitutional obligations of legislators that they find objectionable? How very convenient for them! It’s good to be king!

What's different in this case is the effort being made to use the law to strip existing rights. That's why the sides are reversed and elected officials are making a stand -- apparently against the law -- to protect a higher principle.

Please! Exactly what higher principle is protected by disobeying the highest law of the Commonwealth? This definition of marriage dispute essentially concerns the provisions of constitution itself. If legislators wish to appeal to something beyond constitutional law and label the behavior civil disobedience, fine. But they should honor their oath of office to abide by the constitution and simply resign their office to avoid voting as the law and their oath require rather than suppress the due process that the constitution and the SJC demand.

Ah, but if they were to resign from office just for the sake of something so flimsy as honor it would come at a high personal cost (now there is a way to gauge whether someone believes in a principle!). Judging from their behavior, it seems to me they value their state pensions more than their oaths.

December 29, 2006 2:13 PM  
Blogger Outraged Liberal said...

You totally miss my point. I am commending those legislators for voting their conscience and committing an act of civil disobedience, if, as the SJC contends, they must vote on every amendment on the calendar. (And how do you square that with the the fact all Constitutional Conventions leave amendments undiscussed?)

I am not disputing the thresholds have been met to place the question before legislators. I am saying that they are, by design, extremely low and unfortunately allow for mischief such as mean-spirited efforts by groups such as those looking to overturn what the SJC has already granted.

And let us please not forget that this issue has been debated several times over the course of the legislative term. What legislators have done is use Roberts Rules of Order as part of their arsenal. Votes have been taken -- repeatedly -- on this issue. What is lacking, to date, is a majority in favor it.

Are you arguing that someone who believes in something should walk away rather than stand up for what they believe is right if a court rules otherwise? Or, in your words, they should be a "cafeteria constitutionalist"and pick and choose what they will stand and fight over -- and when they will choose to "cut and run?"

Should people have stood up against slavery? Against segregation? Against denying women the right to vote? Or should they have walked away as you suggest?

The highest law of the commonwealth grants equal protection of the law to all its citizens. That is what is at issue here -- the Declaration of Rights and not Article 48.

The term sophomoric suggests commenting on something without careful reading and thought -- something that is clear from a post that picks and chooses which arguments to take issue with. Period. Grade: F. (But I will fix the type -- thanks!)

December 29, 2006 5:40 PM  
Anonymous Anonymous said...

"SJC when it perceives and declares new rights in the constitution"

Marriage is a new right? Wow, I was unaware. Thought it was as old as time myself, course it was only the late 60's when the US Supreme Court declared, "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. 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."

That was a rebuke to a bunch of busybodies who felt they had a fundamental right to marry whoever they wished, yet also wanted to restrict everyone else's right to marry only who they, they busybodies, chose. Of course, things like that are so far out of our range of experiences. No resonance for today.

Hey, I've got an idea, let's see if the Vote on Marriage people think marriage is a right or not. We'll get 65,000 sigs that say *they* can only marry if we vote for it. Or how about Catholics can only marry Catholics, and converts don't count, let's violate religious rights as well as marriage rights while we're on a roll. I'm sure they'll go for it. No, marriage is a fundamental right for me but not for thee from them, what do you think they are, utter unabashed hypocrites? I don't think they think marriage is a right at all, *especially* not for themselves! It's a provilege that can be taken away by anybody at anytime for any reason. Certainly not a right they'd fight to the death to affirm if it were outlawed, or think was worthy of maybe tableing a vote over or anything by a few legislators, since only 25% is needed for passage. Of course, they know that will never happen, so talk is cheap, innit?

"disobey the same SJC when it perceives and declares constitutional obligations of legislators that they find objectionable? How very convenient for them! It’s good to be king!"

Great point! As outraged liberal points out, not voting on amendments happens a thousand times a concon, the SJC doesn't care, VOM don't care, nobody cares, ever. And nobody has a problem with activist judges who abuse frivilous lawsuits to editorialize on matters over which the justices have no power, correct? Of course you don't. This so-called fundamental breach of the Constitution has been okay everytime it's happened in the past and will be okay everytime it happens in the future, but in this one case, it's a travesty. And that's not "Cafeteria Constitutionalism," no way, it just conveniently happens that the one time it matters is when it's good for me as a conservative and all the times it didn't, well, that was good for me, too, so why get bent out of shape, the past is the past. Let's bury it and move on, but not too far, because if there's something I'd like to see buried at the next Concon, remember, that's perfectly fine (love the fact that we didn't put in a reproductive choice amendment! Yippee!). Consistency is the hobgoblin of little minds and all that.

That's just how important the right of a small group of fanatics' desire to have veto power over their fellow citizens' fundamental rights is, that's all! I'm going downtown right now to let everybody know that they can't be married unless I say so (um, unless they're straight that is, then they can because stopping them would be a gross breach of their rights). Then I'm going to draw up petitions about how gays, and other minorities, don't have the right to speak or vote or worship without my permission. This is a Constitutional issue, and if there's one thing the Constitution was not intended to do, it's protect individual rights against majority tyranny! Hold your breath, cuz I'm gettin' up a petition and we need to vote on whether you're allowed to breathe or not!

"Exactly what higher principle is protected by disobeying the highest law of the Commonwealth?"

None! Well, except if the highest law of the Commonwealth is allowing equal rights for all, which it is, and part of that is equal marriage rights for all, ditto. Disobeying our highest law in that instance is a-okay double terrific. And sure, our constitution may say with its lips, "An initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the measure, which is proposed by the petition. Excluded Matters: No measure that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal, recall or compensation of judges; or to the reversal of a judicial decision" but, um, with its EYES, it's saying, "overturn judicial decisions like it's 1999, baby! You gotta disregard our highest law to affirm our highest law. Yahoos rule, rights drool!"

What higher principle, hmmm. There are certainly no rights that reside in the individual, and none so basic that neither the state nor a collection of idiots down the street can take them away. Let's skip petitioning about whose property we're going to strip, and go right to whether I should personally be killed for public entertainment in the square on sat night. I've got no right to live if 25% of the lege and 51% of the people vote for me to be killed in accordance with citizen sponsored iniative law. It would be an act of civil disobedience for me to try and flee or hide, so no worries, I'm staying put.

"Ah, but if they were to resign from office just for the sake of something so flimsy as honor it would come at a high personal cost (now there is a way to gauge whether someone believes in a principle!)."

Oh absolutely! How is it brave to put principles to the test, when they haven't been tested? Election a month ago where they could have been voted out, what's that? That certainly didn't happen. These Kings are unelected on top of anything else! There is no recourse for anyone who wants to punish this principled and courageous stand. If anyone did, of course. It's not as if pro-equality legislators have been overwhelmingly reelected and haters have lost ground. Besides, I don't think it really is principled. I can't see any principle, therefore clearly there can be no principle, it's that simple. Legislators are doing this not out of principle but for the sake of doing it, because...well, um, I'm sure there's some explination, something in it for them, and also, they don't risk anything because of the lack of accountability because we don't hold elections, and um, kay, this part of my argument I have to work on, but I'm sure I'll come up with something.

Anyway, I'm sure that the same proportion of the electorate that espouses hate would love to see these legislators resign! Sure, they're a tiny minority and the vast majority who's pro equality would consider such an action a waste of time and money and a procedural action that's absurd on its face, to have to vote our exact same choices in again after only a month, but majorities only matter when they're stripping away rights from minorities and consigning them to second class citizen status, not otherwise.

Thank you for this post, Outraged Liberal. (And I apologize for the sarcasm, but then I never claimed to not be sophomoric.) One of the most disturbing things about this controversy is the indifference/collusion of far too many Democrats, liberals, and progressives. As long as their rights will never be endagered, they truly can't seem to see what all the fuss is about. It's even a great matter of principle to them to nitpick over some fooishness and pretend there's no greater issue at stake. View from the cheap seats and all that. No wonder slavery, segregation, all the injustices of our society lasted as long as they did with the good guys cowering in fear. I can just imagine the debate.

December 30, 2006 2:36 AM  

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