The oath to vote
The Massachusetts state Legislature failed to vote on the Marriage Amendment on Nov. 9, instead recessing until 2 p.m. on Jan. 2, the last day of the current term. If there is no vote by midnight on that date, then the Marriage Amendment dies.
And constitutional democracy will die, too.
At the beginning of each two-year term, our state legislators take an oath, promising that they will “bear true faith and allegiance to the Commonwealth of Massachusetts and will support the constitution thereof. So help me God.”
A part of the state constitution legislators swear (or affirm) to uphold is Article 48, which requires them to vote on initiative petitions. Article 48 was adopted by the people in 1918 as an amendment to the original constitution and this democratic change created the initiative process.
Article 48 begins: “Legislative power shall continue to be vested in the general court [the official name of the state Legislature]; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people.”
To protect the people’s power to propose constitutional changes for the statewide ballot, Article 48 binds legislators as follows:
“Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays;” “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;” and “If in the next general court ... an initiative amendment ... shall again receive the affirmative votes of at 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.”
The word “shall” is used repeatedly. That means not only that every final action must be recorded by an up or down vote, but that the Legislature must finally act on every initiative petition successfully filed by the voters. In the 1992 case of LIMITS v. President of the Senate, the Supreme Court agreed that “A joint session of the General Court held under art. 48 ... should take ‘final action ... upon all amendments pending’ before it.”
The legal mandate is unmistakably clear. The state constitution requires legislators to bring initiative petitions to a roll-call vote. It doesn’t require just a debate, it requires a vote. It doesn’t require a positive vote, but it does require a vote. Thus, a legislator’s decision to block final action on the Marriage Amendment fails to support the constitution, and thus violates the legislator’s oath of office.
What does it mean to violate an oath? An oath is a promise, publicly and solemnly made, and the failure to keep an oath to support the constitution is a betrayal. Breaking an oath signals a willingness not to be bound by one’s promises or by the constitution. It is a lawless act. It turns lawmakers into lawbreakers.
Yes, it’s happened before, when our Legislature has refused to take final action on other initiative petitions. Current legislators point to this ducking pattern as a cover for their lawlessness. The pattern itself proves the prognosis--the patient, constitutional democracy, is dying.
We the people are no longer governed by the rule of law when our government officials refuse to abide by the people’s law. This is anarchy, and it’s not justified by the “civil rights can’t be put to a vote” argument. This column has addressed the civil rights argument before, demonstrating that only the democratic process involving the people, not the courts, can turn claimed rights into civil rights.
Regardless, if legislators think that same-sex marriage should be treated as a civil right, then they are free to vote against moving the Marriage Amendment forward. They violate their constitutional obligation, however, if they use parliamentary tricks to deny other legislators the opportunity to move it forward.
Legislators have a duty to vote, and to accept the votes of 50 or more of their peers to move amendments forward, because the citizens have a civil right to initiate constitutional amendments, plainly granted by a plebiscite of the people putting the words “final action” and “shall be taken” into our state constitution.
Why the lawlessness? Because the rule of force is prevailing--financial pressure, leadership pressure, ideological pressure--over the rule of law. Those designing our system of government warned us that it would function as designed only when its levers are pushed and pulled by people of virtue. There will be no virtue to be found, outside of those voting to vote, if the “anything goes” strategy kills the Marriage Amendment.
So where will we go from here in the face of such lawlessness? It doesn’t bode well when government mandates are rammed down the people’s throats through illegitimate means, and then the people are told to “end the debate” as if they are bigots. Cutting off the democratic process through oath-breaking maneuvers sends the message to the people that playing by the rules won’t work anymore. That’s a dangerous turn.
On Jan. 3, our newly or re-elected legislators will raise their hands and take the oath of office pledging allegiance to the law for the coming two-year term. Will we have any faith that they will mean what they will say? That will depend on what happens the day before, when the current Legislature meets for this term’s last session of the constitutional convention, to vote on proposed constitutional amendments as required by law.
Daniel Avila is the Associate Director for Public Policy & Research of the Massachusetts Catholic Conference.