MASS DELUSION IN MASSACHUSETTS? Ben Bateman replies to Mark Barton

Mark Barton doesn't think that the MSJC should have interpreted the Massachusetts ERA according to what those voting on it intended it to mean. Instead, he explains that the constitutional provisions, "like lesser laws, must mean what they say, except where they're ambiguously worded or in conflict with other laws" apparently without reference to anyone’s intent.

It's tempting to dismiss this as simply untrue as a proposition of law. The first year of law school firmly teaches that words are always unclear in many circumstances, which is why we need lawyers and judges to interpret them. In every area of law I know of--except constitutional law--courts and administrative agencies regularly study legislative intent. But let's leave the legal point aside.

What's really amazing is Mark's notion that the people of Massachusetts didn’t understand what they were voting on. In his mind, SSM is the obvious result of saying, "equality under the law shall not be denied or abridged because of sex." Mark and four justices of the MSJC have determined the objective and indisputably correct interpretation of those thirteen words is to demand SSM. If the voters thought otherwise, they were just "kidding themselves."

Did the state of Massachusetts suffer a wave of mass stupidity or self-deception in 1976? Apparently so. It boggles the mind that hundreds of thousands of voters could have been so confused, yet only a precious few could possess the keen intellect necessary to unlock the true meaning of those words.

Let's assume for argument Mark's literalist notion that the Massachusetts voters didn't understand what they were approving in 1976, and that's just too bad for them. Hundreds of thousands of deluded people voted for it, but only a select few understood what it really meant. If that's true, then why does it matter that they voted for it? We ask the voters to approve constitutional amendments because their consent to those amendments is what legitimizes them. If the voters didn't understand what they were "really" voting on, then how can we say that they consented to it? We might as well print the ballots in Sanskrit, let the press provide inaccurate translations, and then yell "Gotcha!" once we've tricked the voters into "consenting" to the opposite of what they wanted.
posted by Eve at 1:44 PM VOTE

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