The forgotten art of self-government

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Harkening back to the days when Massachusetts was known derisively as “Taxachusetts,” a liberal coalition is pushing to amend the state constitution to impose a 9 percent tax on incomes above $1 million.  The amendment would override the state constitution’s current prohibition on graduated income taxes.

Putting aside the question of whether the proposed amendment is good policy — and in a highly competitive national and international economy struggling with weak growth, it’s not — the effort actually warms my heart.


Because, for once, activists are seeking constitutional change in the proper manner: through the democratic amendment process, not through the courts.

For years, special interest groups have inappropriately used the courts to secure constitutional change. Take, for example, same-sex marriage.  Again, put aside the question of whether allowing same-sex couples to marry is good policy — and for the record, I think it is. No one can say with a straight face that the Framers of the Constitution intended to provide marriage rights to same-sex couples. In fact, the Supreme Court held as recently as 1986 that there was no constitutional right to engage in homosexual intercourse. Even President Obama professed opposition to same-sex marriage in the 2008 presidential campaign.

A new constitutional right to same-sex marriage should have required a constitutional amendment. Yet Justice Kennedy’s opinion in Obergefell nowhere mentions the Constitution’s amendment process, nor did the Massachusetts Supreme Judicial Court mention the state amendment process in its groundbreaking Goodridge decision. It was left to the dissenters in both cases to grumble about the courts’ disregard for democratic self-rule.

Let’s face it:  amending the constitution just isn’t cool anymore.

The last time Americans amended the U.S. Constitution was 1992, more than two decades ago.  The last time it was amended to recognize a new individual right was way back in 1971.

It may seem inconceivable today, but the appropriate method for enshrining a new right in a constitution is amendment, not a lawsuit. The Bill of Rights — the first 10 amendments to the U.S. Constitution — brought us protections for religious liberty and free speech, the right to bear arms, and numerous rights for criminal defendants including freedom from self-incrimination and the abolition of cruel and unusual punishments. Subsequent amendments brought us an end to slavery and rights for newly freed slaves; the right of the people to directly elect Senators; and the right for women, the poor, and those over the age of 18 to vote.

New York voting booth circa 1900. Courtesy of Wikipedia

New York voting booth circa 1900. Courtesy of Wikipedia

On all of these issues, proponents of change worked hard, often for many years, to forge a nationwide consensus, reflected in supermajorities in Congress and in the States, to have their policy preferences enshrined as law. The 19th Amendment (women’s suffrage) required decades of effort to change hearts and minds before it was ratified in 1920.

Is there any chance that someone seeking voting rights for women or 18-year-olds today would have the patience to proceed through the lengthy amendment process, rather than through the courts?

That was a rhetorical question. After all, there are several pending lawsuits challenging restrictions on voting by felons — and felons make far less sympathetic plaintiffs than mom or grandma (though maybe not your mother-in-law).

So why didn’t proponents of a graduated income tax for Massachusetts just file suit in federal court? Under what passes for constitutional reasoning in some quarters these days, the complaint practically could write itself: to require poorer taxpayers, whose basic needs consume a larger portion of their income than is the case for wealthier taxpayers, to pay the same tax rate just isn’t equitable. Ergo, a ban on graduated income taxes violates the U.S. Constitution’s Equal Protection Clause. Or maybe it violates the Due Process Clause.  Cruel and unusual punishment, anyone?

Any lawyer worth his or her salt would tell you that such a lawsuit is a sure loser. But the same would have been said about same-sex marriage a generation ago.

Convincing a few judges to leave their mark on history is far easier than changing the minds of thousands of federal and state legislators. And no doubt the lawyers advancing constitutional change through the courts believe in the righteousness of their causes.

Unfortunately, the road away from democracy is paved with such good intentions.

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm.

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