In the aftermath of Christmas, the legislature of Massachusetts has now been visited by the Supreme Judicial Court, and the members should be seeing two ghosts from the past: the specter of George Wallace, standing outside the door of a school in Alabama to defy the order of a court, and the late Joseph Welch, paragon of the legal establishment in Boston, with his words to Senator McCarthy, “At long last, have you left no sense of decency?”
Citizens of Massachusetts had collected more than enough signatures on a petition to amend the state’s constitution — in this case, an amendment to overturn the recent, controversial ruling of the Supreme Judicial Court in installing same-sex marriage. The amendment would mainly restore the old understanding that the commonwealth “shall define marriage only as the union of one man and one woman.” Under the constitution, the legislature is obliged to vote by a roll call on a petition properly vetted, as this one was by the attorney general. If the proposal gained at least one quarter of the votes in the legislature — and this proposal surely would have — it would be advanced in a process that could carry over eventually to place the proposal on a ballot, where it would be voted on by the people of Massachusetts. But the legislature performed a finesse: It simply recessed without voting on the petition. If it had adjourned, the governor, Mitt Romney could have called it back into session, where it would have been obliged to vote.
The high court was faced with the prospect of having its own, most dramatic work repudiated, and it came forth with a decision half-expected: The court declared that it had no remedy to provide, under the constitution or laws — it had no means of compelling the legislature to act upon its obligations under the constitution. And yet, what had not been expected was that the court would deliver such a ringing reproach to the legislature: Without a shading of doubt, the court declared that the legislature had failed to meet its plainest duties under the constitution.
The constitution provides that a proposal to amend the document “shall … be laid before a joint session of the two houses,” and shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.”
When the provisions for initiative were enacted, in 1917-18, the question was raised as to what would be done if the legislature failed to act and respect the mandate of the constitution. But the one who raised the question, a Mr. Quincy, answered it himself: “I do not believe we need to consider seriously that contingency or a defiance of the provisions of the amendment by either of these two branches of the General Court.” As Justice Greaney concluded then for the court, “Enough has now been said about the requirement to vote on the merits to place the proposition beyond serious debate.” He acknowledged that members of the legislature had professed to be in doubt as to whether the constitution (in Art. 48) actually required the legislature to vote on a petition properly presented. But Greaney remarked, with more charity than was warranted, that “Today’s discussion and holding on the meaning of the duty lays any doubt to rest. The members of the General Court are the people’s elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth.”
The divided soul of the lawyer now comes into play. One part will grasp the admission of the court that it has no legal remedy to provide. The other part will grasp onto the message the court is conveying when it appeals to the obligation to respect the constitution, an obligation once thought to have special force for lawyers. For in all strictness, the finding of no legal remedy announces nothing new: For example, neither the Supreme Court of the United States nor the high court in Massachusetts has the authority over the purse or the sword. When the U.S. Supreme Court declared, in the famous Lovett case in 1946, that Robert Morss Lovett and others had been wrongly deprived of their salaries by Congress, the Court could not direct money to be spent from the Treasury in order to supply the remedy entailed by its judgment. It was simply a matter of the Congress respecting the judgment of the Court. And the same thing could be said for the court in Massachusetts — money can be spent only through an act of appropriation by the legislature and an order from the governor.
But so it is across the board. As Alexander Hamilton remarked of the U.S. Supreme Court in the Federalist #78, “The judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; … It may truly be said to have neither FORCE nor WILL, but merely judgment.” Its power would depend on the force of its reasoning — and the sense of obligation on the part of other officers to respect its judgments.
Of course, under the laws of Massachusetts, the Supreme Judicial Court never had the jurisdiction to reach the question of marriage; a matter reserved entirely for the legislature. The Massachusetts court reached its decision by invoking a holding of the U.S. Supreme Court in the Lawrence case (on the laws on sodomy in Texas). And by reaching out to the federal Constitution, the Court then gave orders to the Legislature to reshape the laws on marriage. If the Court can invoke the federal Constitution in that way, it could as plausibly invoke now the Guaranty Clause (Art IV, Sec. 4): to “guarantee to every State in this Union a Republican Form of Government.” That is the clause invoked by the first Justice Harlan, in his famous dissent in the Plessy case (1896), to argue that racial segregation could not be reconciled with the deep principles of republican government. It should be even clearer that what is at stake in Massachusetts runs even deeper yet: that the people themselves are the ultimate font of authority in ratifying, or establishing, the fundamental law, or the terms of principle on which they will be governed.
Now where in all of this is that vaunted legal establishment in Boston, or the liberal media, who proclaim their high respect for courts and constitutions? The Massachusetts Lawyers Weekly had earlier complimented the legislature for the courage to pull off this finesse — the courage, that is, to defend same-sex marriage by showing contempt for their obligation to respect the constitution. That was before the Supreme Judicial Court spoke so ringingly on Wednesday. We have until January 2 for the last meeting of the legislature. Let us see if the bar and the legislators of Massachusetts may yet be seized with the sense of constitutional propriety. At long last, will there be any sense of decency left?
– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College in Massachusetts.