July 6, 2009
Has the R.I. Supreme Court Gutted the 1986 Con Con in its Entirety?
... and, therefore, the actions of all past and future Constitutional Conventions?
In addition to trivializing ethics, as Marc put it, and all but decriminalizing bribery, hasn't the R.I. Supreme Court legally voided everything that was implemented by the 1986 Constitutional Convention [scanned PDF] with their ruling [PDF] on the Irons matter?
If the original document supercedes the constitutional amendments passed at the 1986 Con Con by the people of Rhode Island approving the resolutions that emerged from the 1986 Con Con that strengthened ethics in government, doesn't the original document supercede all [edit] future amendments enacted as well as the actions of that and all prior Constitutional Conventions? So wouldn't it supercede all future amendments passed at any future Con Con?
ADDENDUM
Apologies. The process of amending the Rhode Island Constitution begins at a Constitutional Convention which promulgates a resolution in the form of a question to be placed on a ballot and considered by the voters. I have corrected my original post, above.
In the case of the Irons decision, voters had approved the following amendment to the RI Constitution.
“ETHICS IN GOVERNMENT * * * Shall an ethics commission be established with authority to adopt a code of ethics and to discipline or remove public officials and employees found in violation of that code? * * *“B. Ethics Commission: The general assembly would be directed to establish a non-partisan ethics commission that would enforce a code of ethics for all public officials, state and local, elected and appointed. The commission would have power to investigate charges, impose penalties and to remove officials who are not subject to impeachment * * *.”
The main question of this post stands. The Rhode Island Supreme Court has nullified this amendment to the RI Constitution. Such actions do not stand in isolation. By voiding this amendment on the basis that the Constitution supercedes it, have they not voided the entire process of amending the Rhode Island Constitution?
I think you're correct. Of course, your concerns regarding future conventions presume that we will ever be "allowed" by the General Assembly to have another constitutional convention. We're supposed to have one every 10 years. 1986 was the last one.
Posted by: Will at July 6, 2009 9:48 PMMonique, is that post a joke? The court's analysis isn't really that difficult to comprehend is it? I mean, you may not agree with it, but you can at least understand the meaning of the words on the pages, can't you?
The court didn't "void everything that was implemented by the 1986 constitutional convention." That is just bat-sh*t crazy propaganda that isn't even rational enough to hold up as good propaganda for the talk radio set. I can only assume that you didn't bother to read the decision. (Now I know that anti-intellectualism is rampant in the GOP these days, but c'mon, it's only 16 pages long!)
The court ruled that the amendment did not specifically alter the speech-in-debate provision. That is a fact that is not in dispute. Therefore the convention left the constitution with two inconsistent provisions, neither of which allows for any exceptions. The court chose the judicially conservative position of preserving an ancient constitutional privilege and declined to imply a repeal of that provision.
Indeed, only the writers and readers of this "conservative" blog could fail to see the irony in attacking a decision that 1) preserves a privilege that has a very old lineage in the law and 2) reads the constitution strictly.
Or are you arguing that the court should have made the policy decision to read into the constitution an implicit repeal of the speech-in-debate clause where there has been no express repeal by the voters?
Posted by: Pragmatist at July 6, 2009 11:59 PMProtestations in the majority opinion have little effect next to the action taken with this decision, Pragmatist.
With the Irons decision, the RISC nullified a legal amendment to the RI Constitution. Such actions do not occur in a vacuum.
Posted by: Monique at July 7, 2009 7:58 AMHey Pragmatist, your insults aren't going to be effective unless you come somewhere close to reality in the rest of your comments.
The United States Supreme Court had refrained on multiple occasions from extending speech-and-debate immunity to laws specifically designed to regulate the ethical conduct of legislators, prior to the ratification of the RI Ethics Amendment. For a court to substitute its own view of what it thinks that ethics regulation should be, in place of what 1) prior courts have decided and 2) the people of Rhode Island have decided, is not "judicially conservative".
Monique,
The other way you can be sure that Pragmatist doesn't know what's he talking about on this is that he missed the obvious answer to your question, which was addressed in the majority opinion...
Nor can we rely on the maxim of constitutional construction that the later-enacted amendment is preferred over the earlier, because the Ethics Amendment and the preexisting provisions were both voted on and approved by the people on the same day.In other words, the majority's position is that because the entire Constitution is re-approved at the end of the Con Con process, every provision within it is considered to have passed into law simultaneously, even the ones that were there before. Interestingly, there's no citation accompanying the above statement, so I'm not sure if that's a well-established principle of Constitutional interpretation, or if the court made that one up on the fly.
Posted by: Andrew at July 7, 2009 9:07 AM
Andrew,
It is pure farce to argue, as Monique does in her original post, that the court's decision "legally voided everything that was implemented" by the 1986 constitutional amendments. Not a single attorney in this state has raised that concern. But farce is a specialty around AR, so nothing too extraordinary there.
As to your citation to the US Supreme Court decisions interpreting the US constitution and statutes, they are not controlling on a question of interpretation of the RI constitution. Indeed, as a conservative, I'm sure that you would support a careful reading of the text of our constition rather than importing into our constitutional debate the opinions of judges on other matters entirely, no?
So I ask again, do you and Monique believe that a court should imply amendments into a constitution or should they rely on the express words of the document itself? Your arguments here support a court looking to the dreaded penumbra of a text to read into it what the voters did not do expressly. In this case, the voters did not repeal the immunity. That leaves us with two conflicting provisions, and one of them has to lose. Your policy preference is that the court should have chosen the ethics amendment, which would have required the court to imply a repeal. That's simply not conservative in any sense of the word.
Posted by: Pragmatist at July 7, 2009 1:48 PMIt's the Rhode Island Supreme Court, not me, that introduced the US Supreme Court's interpretation of legislative immunity into Rhode Island law. The U.S. Supreme Court's interpretation of the scope of speech-in-debate immunity established in United States v. Brewster was brought into Rhode Island law in the Holmes v. Farmer decision in 1984. In Brewster, the court re-iterated what it had said in United States v. Johnson, explicitly leaving open the question of whether legislative immunity extended to laws specifically intended to regulate legislative conduct.
A constitutional amendment which fills an area explicitly left open by the courts takes precedence over a judge's opinion that past court rulings should have been more expansive than they were. Courts possess no special authority to tell the people sorry, you're not allowed to amend your Constitution to fill an unsettled area of the law – which is what this court has done. The people looking into dreaded penumbras are the Rhode Island judges who want to overturn the plain meaning of the Constitution based on precedents that don't exist, and not the ones who believe that "all elected and appointed officials" means "all elected and appointed officials".
"That leaves us with two conflicting provisions, and one of them has to lose."
Correct. So why did the original document prevail over the amendment? What's the point of providing for an amendment process if the amendment is going to be pre-empted in favor of the original document?
"That's simply not conservative in any sense of the word."
No, it's the will of the people as voiced through a (presumed to be) legitimate amendment process. Conversely, reactionary is the only word to describe adherence to an original document in defiance of a legally promulgated amendment.
Posted by: Monique at July 7, 2009 11:03 PM