WWJD -- What Would John Do?

In 1780, Massachusetts unveiled a new constitution written chiefly by John Adams.  Nine years senior to its federal counterpart, and undeniably a role model for its younger but more famous federal sibling, the Massachusetts Constitution stands as the world’s oldest written constitution still in operation. 

In 2003, the Supreme Judicial Court (SJC), atop one of the three branches of government that Adams conceived, determined that the Massachusetts Constitution permits gay marriage.  Conservative commentators and talk radio denizens cried foul, bemoaning the handiwork of activist judges.  But the SJC eventually assuaged the fourth estate’s frustration by admonishing that each Massachusetts legislator had a constitutional obligation to vote up or down on a so-called “Protection of Marriage Amendment” rather than allow it to die by dint of inaction. 

When a bit more than the requisite 25% of our state legislators voted to move the amendment forward, the press and talk jocks declared a “victory for democracy.”  The Protection of Marriage Amendment could become part of our constitution if a majority of voters are determined to ban gay marriage. 

With the raucous debate over gay marriage about to come out from hibernation – another legislative vote will occur later this year – it may be constructive to consider that simple question inscribed on wristbands adorned by many Americans: “WWJD” – in this case, “What Would John Do?”  Pedantic and argumentative, John Adams would undoubtedly express strong opinions about the constitution’s role in the gay marriage debate.  While he might criticize the SJC’s categorization of gay marriage as a constitutional right, Adams would be even more troubled with the process by which the Protection of Marriage Amendment might become insinuated into the Massachusetts Constitution. 

Since 1918, our state constitution has been shockingly easy to amend by voter initiative.  There are three principal steps.  First, amendment proponents must collect the signatures of 3 percent of the number of voters from the last gubernatorial election.  Protection of Marriage Amendment advocates needed approximately 67,000 signatures (about 2.2 million votes were cast), an amount easily obtainable by a well-funded campaign.  Next, in two consecutive years 25% of our legislators must vote to move the amendment forward, a low percent even in a one-party state like Massachusetts.  And finally, a majority of voters must approve the amendment at a statewide election; the voter initiative process imposes no two-thirds or three-quarters super-majority vote requirement.

By contrast, the federal Constitution and most other state constitutions require super-majority approval of amendments.  As a result, the federal Constitution has been amended only 17 times since the Bill of Rights was added in 1791.  The Massachusetts Constitution, however, has been amended 120 times, 72 of them since the voter initiative process arrived in 1918.  And it seems that placing proposed constitutional amendments before Massachusetts voters is like money in the bank; they have rejected proposals only 13 times since 1820. 

John Adams had no love for the type of “direct democracy” embodied in the 1918 initiative scheme.  He believed that the excessive populace power was just as pernicious as inordinate monarchical and aristocratic power.  Adams therefore championed a “representative” government; while his constitution enabled the people to elect a governor and legislators, it didn’t permit them to participate directly in their representatives’ decisions.   

If Adams were alive today, he would decry that our current initiative system virtually removes legislators (i.e., representative government) from the amendment process; it requires the legislature to muster a 75% super-majority to defeat a constitutional amendment proposed by just 3% of the voting public.  And, he would emphasize that this easy-to-amend Massachusetts Constitution is anathema to the notion of a constitution.  Adams believed that constitutions should pronounce organic, fundamental values, held beyond the reach of the fickle populace.  But our current initiative process epitomizes popular will.     

In fact, today’s initiative procedure is nothing like Adams’s original amendment process.  His constitution provided only one chance for fine tuning, that coming in 1795.  And, Adams didn’t make the amendment process easy to achieve.  First, two-thirds of the voters would have to express “their sentiments on the necessity or expediency of amending the Constitution.”  Then, the people would have to elect delegates to a constitutional convention in the same way they elected representatives to the legislature.  Finally, the delegates at a constitutional convention, not the people themselves, would make the final decision.  Even in amending the constitution, therefore, Adams remained committed to a representative form of government. 

What would John do?  He would tell us that the 120 amendments have caused our state constitution to look more like ordinary statutory law than a constitution.  He would ask us to again empower our legislature to play a meaningful role in the amendment process.  And he would advise us that, however opposed to gay marriage one might be, the threat to orderly government created by the initiative process outweighs any short-term benefit derived from using it to advance a single political issue.

Peter M. Malaguti is a professor of law at the Massachusetts School of Law at Andover, and a practicing attorney.  He teaches constitutional law, property, conveyancing, land use regulation, local government law, and landlord-tenant law.  He can be reached at malaguti@mslaw.edu.