Who Is Sovereign in Massachusetts -- the Justices or the People?

In today's Schulman v. Attorney General, the Massachusetts Supreme Judicial Court rejected a pre-election challenge to an initiative constitutional amendment that would overrule the court's same-sex marriage decision. The Massachusetts Constitution bars initiatives from "revers[ing] ... a judicial decision," but the court unanimously (and in my view correctly) held that this applied to attempts to reverse a decision as between the two parties involved — it doesn't bar the overruling of a judicial decision that interprets the state constitution.

But Justices Greaney and Ireland wrote a separate concurrence to address a different matter (emphasis added):

In Goodridge v. Department of Pub. Health, we held: “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are ··· homosexual. ‘The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984)···· Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under the law protected by the Massachusetts Constitution.”

There can be no doubt after the Goodridge decision that the Massachusetts Constitution protects the right of a couple who wish to marry, and are otherwise eligible to marry, to obtain a marriage license, regardless of gender. It is equally clear that the proposed initiative is directed toward withdrawing this right from a distinct segment of our community, thereby prohibiting, as matter of constitutional law, same-sex couples from committing to civil marriage and from attaining the multitude of legal rights, and financial and social benefits, that arise therefrom. The proposed initiative cannot be said to further a proper legislative objective (as was categorically decided by the Goodridge court, there is none). The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form. Our citizens would, in the future, be divided into at least three separate and unequal classifications: heterosexual couples who enjoy the right to marry; same-sex couples who were married before the passage of the amendment (but who, if divorced, would not be permitted to remarry someone of the same sex); and same-sex couples who have never married and, barring the passage of another constitutional amendment on the subject, will be forever denied that right.

There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by art. 1 of the Massachusetts Declaration of Rights.... [T]he Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution.

If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document's elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits.

This strikes me as deeply wrong: The Massachusetts Supreme Judicial Court is saying that its judgments about equality and fairness under the Massachusetts Constitution trump not only the judgment of the legislature, but the judgment of the people amending the constitution itself.

And this, it seems to me, goes to the heart of sovereignty. Judicial review has pluses and minuses, but its premise (which I believe generally justifies it) is that the people have ordained a Constitution as the supreme law of the land. Judges must therefore enforce this supreme law as against any legislative enactments, or even the enactments of the people voting as ordinary legislators. The judges are thus acting as servants of the sovereign people, carrying out the people's instructions. One problem, of course, is that sometimes the people of today may want something other than what the people of the constitution-writing era did; another is that judges may wrongly interpret constitutional provisions. But at least in principle (and in practice, especially in states, where the constitutions are easier to amend than the federal constitution) both problems can be solved through the constitutional amendment process.

But here the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people. That, I think, would be a very bad result. Even if one thinks that sometimes judges may use this sovereign power in fairer ways than the people do, the same can be said about dictatorship or monarchy (or even dictatorship or monarchy limited to particular topics). The premise of democracy, including of constitutional liberal democracy, is that the best — not the perfect, and often not even very good (consider Churchill's famous line about democracy), but the best — place to repose sovereign power is in the people, not in Philosopher-Kings.

* * *

Three details:

1. The Massachusetts Constitution does exclude certain topics from the scope of the initiative; but that at least is a limitation on sovereign power that the people of the past expressly adopted. If anything in the Massachusetts initiative process is unconstitutional, it is the attempt to entrench this limitation as being forever unamendable ("No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition"), because that would leave sovereign power forever in the hands of the people of the past, rather than of the people of the present. Yet even that is better than leaving it in the hands of the Justices, who are adding to the prohibited matters section of the constitutional amendment provision.

2. To my knowledge, the Massachusetts Constitution provides no standard constitution-making alternative to Massachusetts voters besides the initiative constitutional amendment (as opposed to, say, impeachment, which isn't itself a constitution-making process) and the legislatively proposed (and then popularly voted on) constitutional amendment; the two Justices certainly don't point to one. And presumably the Justices' reasoning would forbid legislatively proposed constitutional amendment overruling Goodridge just as it would apply to initiative constitutional amendments. So it's not just a matter of the two Justices saying, "you can't use the initiative, you must use some other process instead" — as I read them, they're saying that the voters lack sovereign power over this subject at all.

3. It is possible for an initiative constitutional amendment to violate the U.S. Constitution; but this is not the argument that the two Justices are making in the body of their opinion. They do suggest such a possibility in a footnote, but devote the body of the opinion to the argument that the amendment might violate the Massachusetts Constitution. The difference is important, because any Massachusetts Supreme Judicial Court decision striking down a state constitutional amendment on federal grounds would be reviewable by the U.S. Supreme Court; on federal matters, the state supreme court has no hope of usurping sovereignty. On the other hand, a decision striking down the amendment on state grounds would be final, as far as the federal courts go, unless the courts conclude — unlikely, given current precedent — that such a state judicial decision violates the Republican Guarantee Clause of the U.S. Constitution.

UPDATE: Some commenters suggested that the two Justices' position might be sound, on the theory that (1) if the initiative passes, it will be inconsistent with another part of the state constitution (as the state Justices have interpreted it), and (2) it may therefore be sensible (or at least poses "an intriguing question" of constitutional methodology) for the Justices to decide that the older provision prevails over the new one.

That seems to be quite the wrong approach for dealing with constitutional amendments. The point of amendments is to change the constitutional status quo; that oftens (on some definitions of the terms, always) involves superseding an old provision — or an interpretation of an old version — with a new one.

Just to take a few examples from the more familiar to us federal Constitution, the Eleventh Amendment changed that part of article III, as interpreted by the Supreme Court, that conveyed jurisdiction over certain disputes to the federal courts. The Twelfth Amendment replaced part of the original Constitution's system of electing the President and Vice-President. The original Constitution left slavery to the states (even to the extent that it was silent about slavery, that under the constitutional scheme left states to make the decision); the Thirteenth Amendment was inconsistent with that old constitutional rule, and superseded it. The original Constitution could have been (and, despite Madison's arguments to the contrary, likely would have been) interpreted to let the Congress exercise its enumerated powers in ways that interfered with speech, or involved unreasonable searches; the Bill of Rights was inconsistent with that old structure, and superseded it.

So when a new constitutional provision specifically sets forth a result that is contrary to that mandated (or mandated in the view of the courts) by an old provision, the new provision should prevail: The whole point of constitutional amendments is that they replace the old with the new. Anything else leaves sovereignty either in the people who enacted the old provision, or in the judges who interpreted that old provision, or in the judges who decide based on some subjective judgment whether the old provision should prevail or the new one. The last-in-time-prevails rule is the only proper rule here. (I set aside the situation where the new rule doesn't clearly contradict the old rule, for instance when the new rule is more general and the old is more specific; in this case, the new rule — no same-sex marriages recognized — would definitely contradict the old — recognition of same-sex marriages mandated by the state constitution.

Laurence Tribe Responds About the Massachusetts Justices' Concurrence:

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 . . . .)