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Amending the amendment process
It should be harder to change the Massachusetts Constitution

IN THE AFTERMATH of last week’s defeat of an attempt to amend the state constitution so as to ban same-sex couples from ever marrying in Massachusetts, many observers have noted the importance of not putting human rights up for popular vote.’s Arline Isaacson, for instance, told the Boston Globe: " It’s great that so many legislators understood that we should never put equal rights on the ballot for the popular vote, and that the tyranny of the majority should not be allowed to take away the rights of the minority. "

Actually, that’s not quite what happened. State legislators never took a vote on whether or not to allow the anti-gay measure to go before voters. Instead, they voted not to deal with the measure at all. Make no mistake, we’re happy with the outcome. But let’s give credit where it’s due. The legislature didn’t stop the odious anti-gay constitutional amendment. Senate president Tom Birmingham, who chairs constitutional conventions, did. He did so by letting members vote on whether or not to adjourn the convention before taking up any business. If he had let the convention go forward, it would have taken more than 75 percent of the legislators to stop the anti-gay amendment — a threshold that would not have been met.

While Birmingham is clearly guilty of using parliamentary procedure to kill a popular measure, which puts him in the company of such masters of manipulation as House Speaker Tom Finneran and former Senate president Billy Bulger, at least Birmingham killed the amendment in democratic fashion. Unlike Bulger, who in the early 1990s gaveled constitutional conventions to a close before anyone could take up the business of term limits for legislators, Birmingham let legislators vote on whether or not to go forward. Birmingham did the right thing.

But the episode raises an important issue: the ease with which our state constitution can be amended. There is no doubt that if Bulger were still Senate president, the anti-gay constitutional amendment would have won approval by the legislature. If Finneran were in charge of constitutional conventions, there is no obvious reason to think it wouldn’t have won approval. If any of the senators named as Birmingham’s most likely successors — Linda Melconian, Marian Walsh, Mark Montigny — were in charge of the senate, the measure would likely have been approved.

What kind of system do we have that we’re simply lucky — lucky! — that the right politician was in the right place at the right time to kill a mean-spirited, hateful anti-gay state-constitutional amendment? While our state constitution, like the US Constitution, prevents the passage of laws that take away the rights of the minority, it’s shockingly easy for Massachusetts citizens to amend the constitution to do just that: 10 registered voters must draw up a new amendment; organizers must collect signatures from three percent of the total votes cast in the last gubernatorial election in support of the amendment (until the 2002 election is certified, that means 57,100 signatures); 25 percent of state legislators must approve the amendment in two successive legislative sessions; and a simple majority of Massachusetts voters must approve the amendment in a statewide election. It may sound difficult, but it’s not.

The business of ballot referendums has become just that: business. You can basically buy enough signatures for any issue to get on the ballot. Just about any issue can get 25 percent of the legislature. And the public, as the authors of the US Constitution wisely observed, should not be allowed to vote on issues of human rights, because the majority can so easily tyrannize the minority. Two years ago, for instance, Massachusetts citizens approved a constitutional amendment banning incarcerated felons from voting.

We’d be better off with a constitution as difficult to amend as the US Constitution. One of the enduring strengths of the US Constitution is the fact that it is so hard to change. There have been some disappointments in this regard, such as the failure to pass the Equal Rights Amendment. And there’s been one truly disastrous amendment: the 1919 prohibition of alcohol, a provision that was repealed 14 years later. Today, polls regularly show that the public would repeal the First Amendment if given a chance. But it’s not going to happen. Not when two-thirds of both branches of Congress and three-quarters of state legislatures must approve it within a prescribed period of time.

In the late 19th century, when the heat of the Progressive Era was burning strong, the state constitution was amended to make it easier for citizens to have a direct say in how the state is governed. During this time, many states adopted the initiative and referendum-petition process. More than 100 years later, we’re living with the unintended consequences of that well-intentioned reform. Today, the ballot process is corrupt. Just look at how the anti-gay measure won enough signatures in the first place: it paid a signature-gathering firm to collect names. It later turned out that some signatures were collected by lying to voters, who were told that signatures were being collected for a law that would prevent the slaughter of horses in Massachusetts. The Attorney General’s Office warned the public about the bait-and-switch tactic but, incredibly, did not investigate the allegations.

It should be harder to change our constitution. Why not emulate the federal process and require the approval of two-thirds of the legislature, and 75 percent of the public? Changing the US Constitution is a painstaking process that requires proponents to win opponents over to their point of view. It’s not a process in which ideologues of either the right or the left thrive. The same should be true in Massachusetts.

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Issue Date: July 25 - August 1, 2002
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