Faculty Blog: Taxation, Tyranny and Constitutional Amendment by Initiative

By: Lawrence Friedman

Tasked in 1779 with drafting a new constitution for Massachusetts, John Adams envisioned a form of government designed not to thwart democracy, but to channel its best impulses and discourage the worst. Adams believed individual liberty would be secure and tyranny held at bay only so long as the great powers of government were separated and each branch appropriately checked. As stated in Article 30 of the Massachusetts Constitution, the goal was a government “of laws and not of men.”

On February 6, the Supreme Judicial Court heard arguments in a case that threatens to undermine Adams’ constitutional vision. In Anderson v. Healey, the court is faced with the question whether a majority of the people can amend the constitution by initiative to impose a tax on a minority of their fellow citizens. The Massachusetts Attorney General is defending the initiative petition as valid under the constitution; if she prevails, the proposal will provide a roadmap for citizens seeking to impose taxes on nearly any group that it can convince a majority of the people should be taxed.

Ratified in 1918, Article 48 of the Massachusetts Constitution permits amendments to the constitution via the initiative process. But it forbids measures that “make a specific appropriation of money from the treasury.” If the people cannot appropriate money, it follows they cannot raise it, either. Article 48, after all, does not purport to alter the legislature’s plenary authority to budget for the Commonwealth’s spending needs, and it would make little sense to allow the legislature to control appropriations but not the revenue stream. Further, Article 48 provides that the legislature has the responsibility to “raise by taxation” the means to fund legal obligations created through an initiative, a provision that would be superfluous if the people could both propose obligations and impose the taxes to pay for them through the initiative process.

Defenders of the initiative petition at issue in Anderson nonetheless argue that Article 48 does not specifically deprive the people from embedding a tax in the constitution. But this argument treats Article 48 as entirely divorced from the governmental scheme Adams created. The structural checks and balances in the constitution were a means to subvert tyranny, and it is worth remembering that Adams and his generation knew well the tyrannical potential inherent in the power to levy taxes. Any ambiguity in Article 48 regarding the taxing power should be resolved in favor of the original understanding that revenue generation lies exclusively within the legislature’s domain.

It is also worth remembering that, in addition to the deliberation and expertise the legislative process provides, it ensures political accountability: when people are upset by the consequences of a tax, they will know precisely who deserves the blame. The initiative process is comparatively unmoored. It is not representative, deliberative or based upon expertise. And there is no political accountability: when the consequences demonstrate that an initiative-driven amendment has proved to be misguided, aggrieved citizens have nowhere to turn, other than to once again engage the years-long process of seeking change through a new initiative.

None of this is to say that taxation is not necessary to fund all that we have rightly come to expect from government. But, as history shows, taxation may also flirt with tyranny. As the great Supreme Court Chief Justice, John Marshall, once observed, “the power to tax is the power to destroy.” This is why efforts to impose taxes should have to survive the checks and balances of the legislative process John Adams designed, and not be left to the whims of a bare majority of voters on a given day in November.

Lawrence Friedman is a professor of law at New England Law | Boston and co-author of The Massachusetts State Constitution.

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