Saturday, November 25, 2006

Usurping the Constitution

Hot lesbian matrimonial action!Mitt Romney has sued in an attempt to force the issue of gay marriage to get a vote by the citizens of Massachusetts.

Per today's Telegram:
The suit asks the court to require that Mr. Travaglini call for a vote at the Jan. 2 convention, its last before the end of the 2005-2006 legislative session

If no vote is taken on the measure that day, the suit asks that the court require the secretary of state to put the proposed constitutional amendment restricting marriage to one man and one woman on the 2008 ballot without legislative approval.

“A decision not to vote is a decision to usurp the constitution, to abandon democracy, and substitute a form of what this nation’s founders called tyranny: that is, the imposition of the will of those in power on the people,” Mr. Romney said.

Ignoring for the moment the fancy rhetoric, one thing no article I've seen about this has discussed is the actual constitutional basis for what Romney is trying to force; putting an amendment on the ballot while skipping the legislature itself.

Here it's helpful to look at the Constitution itself, specifically the part dealing with Initiative Petitions. Romney's focus is on the legislature having to have a vote, as supposedly indicated by the word "shall":
Section 4. Legislative Action. - Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays, which shall be entered upon the journals of the two houses; and an unfavorable vote at any stage preceding final action shall be verified by call of the yeas and nays, to be entered in like manner. At such joint session a legislative amendment receiving the affirmative votes of a majority of all the members elected, or an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.

What he seems to be missing, however, is the next Section (my emphasis):
Section 5. Submission to the People. - If in the next general court a legislative amendment shall again be agreed to in joint session by a majority of all the members elected, or if an initiative amendment or a legislative substitute shall again receive the affirmative votes of a least one-fourth of all the members elected, such fact shall be certified by the clerk of such joint session to the secretary of the commonwealth, who shall submit the amendment to the people at the next state election. Such amendment shall become part of the constitution if approved, in the case of a legislative amendment, by a majority of the voters voting thereon, or if approved, in the case of an initiative amendment or a legislative substitute, by voters equal in number to at least thirty per cent of the total number of ballots cast at such state election and also by a majority of the voters voting on such amendment.
In other words, it only gets to the popular vote if voted for in sufficient numbers by the legislature itself. I'm no constitutional scholar, but to skip that step, as the suit seeks to do in absence of a vote, also seems like it would be unconstitutional.

So usurping the constitution is bad, unless you're the one doing it.

Now, personally I don't think civil rights should ever be subject to popular vote, but the constitution does appear to allow it in some (but not all*) cases. Furthermore, amending the constitution to remove rights from a subset of people is just abhorrent.

Should there be a legislative vote? Maybe. I'd rather see it after the new reps are sworn in (so long, Emile Goguen!) than during the current session, but either way I suspect the initiative is doomed to failure. The longer this goes on, the less opposition you're going to find in the general population (which may be part of why Romney is so keen to get it on the 2008 ballot).

On another note, why does Romney want to restrict marriage to being between "one man and one woman"? Do his Mormon buddies know he's up to this?

* Per the constitution:
No proposition inconsistent with any one of the following rights of the individual, as at present declared in the declaration of rights, shall be the subject of an initiative or referendum petition: The right to receive compensation for private property appropriated to public use; the right of access to and protection in courts of justice; the right of trial by jury; protection from unreasonable search, unreasonable bail and the law martial; freedom of the press; freedom of speech; freedom of elections; and the right of peaceable assembly.

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