The Volokh Conspiracy

Here's his comment (links added by me):

The question that the Greaney/Ireland concurring opinion presents is certainly an intriguing one. I agree with what I take to be Marty Lederman’s view that Eugene Volokh's interpretation of that concurrence is by no means the most generous possible construction of the point the two SJC justices are trying to make; and I agree that Marty’s carefully nuanced re-reading of their opinion is a linguistically possible one inasmuch as the Massachusetts initiative doesn't appear to be written as an explicit exception to the "protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits" found elsewhere in the Massachusetts Constitution. Given that the asserted conflict between the initiative and those protections would exist only on this premise, I wholeheartedly agree:

-- that the question posed by the task of reconciling seemingly inconsistent constitutional provisions, each on the same formal plane of sovereign legitimacy, is far from self-answering;

-- that the "last-in-time" principle is not an inevitable corollary of the axioms of self-governance over time;

-- that overarching principles of "clear statement" for establishing a hierarchy among otherwise conflicting provisions — principles themselves subject to modification in any truly "republican" form of government — could well support a conclusion that inadvertent derogation from core protections of equality of citizenship is to be avoided;

-- that Jed Rubenfeld's work, especially, is pertinent to that issue; and

-- that, in any event, the concurrence performs a valuable service in reminding the People of Massachusetts that the matter before them is one that should be taken with utmost seriousness.

That said, I tend to read the concurrence less generously than Marty has read it and see in it more of the seeds of an imperious and self-aggrandizing, even if unintended, assertion of judicial supremacy. In particular, I'm not at all sure that Justices Greaney and Ireland would agree with the two of us that, if the initiative had been expressly couched as an exception to the quoted equality principle, there would be no "conflict" of the conventional sort for the court to resolve — although, even on that assumption, an argument could certainly be made that some bedrock constitutional principles might be entrenched so deeply in any given constitutional system that more than a popular initiative of the current electorate would be required to "untrench" them, a proposition obviously more difficult to reconcile with classical versions of constitutional democracy.

A major difficulty I have with the Greaney/Ireland opinion even so is that it seems on its face to be less sensitive than one might wish to distinctions of this order and could even be said to be tone-deaf to the hegemonic view of judicial authority that it might be read as announcing.

For these reasons, I find myself in considerable sympathy with a good bit of what Eugene says in his immediate reaction to the concurrence.

UPDATE: Marty Lederman adds the following:

Thanks to Larry and Eugene for treating my provocation with perhaps more attention than it warranted. (Confession: I still haven't had a chance to read the SJC opinions themselves, and I will therefore assume that Eugene and Larry have accurately captured the tone, and the shortcomings, of the concurrence.) On further thought it does seem to me that Eugene was getting at something that I probably shortchanged, namely, that it's probably fair to assume that the "People" at all three points in time -- at the time of ratification of Constitutional Provision A; at the later time of ratification of inconsistent Provision B; and at the still-later time C, when the court is asked to resolve the conflict between A and B -- assume (for better or worse) that a "last in time" rule is the appropriate tie-breaker, even where the first-in-time provision might be more consistent with the Constitution as a whole, i.e., even when Provision B is the provision that is out of whack with the remainder of the document. And if that's correct -- if there is such a consensus of the People over time as to the proper methodological tie-breaker -- then that should establish the default rule for conflict-resolution as a matter of constitutional ethos, or some such thing. Which, conveniently enough, happens to coincide with what we all know the courts would invariably do! (Which is all the more reason why the concurrence was so startling . . . .)