Opinion

Cohen v. Attorney General

  • 357 Mass. 564
  • 259 N.E.2d 539
  • 1970 Mass. LEXIS 861
Court
Massachusetts Supreme Judicial Court
Filed
Jun 5, 1970
Status
Published
Author
Cutter
On the bench
Wilkins, Spalding, Cutter, Kirk, Spiegel, Reardon, Quirico
Cited by
17 cases
Authority
More cited than 5.1%

paying “due regard to the setting in which the [constitutional] words . . . appear”

How later courts described this case

  • paying “due regard to the setting in which the [constitutional] words . . . appear”
  • examining debates in order to interpret “law” or “laws” as used in art. 48
  • petition seeking popular vote on whether to call constitutional convention excluded under art. 48
  • "nonbinding expression of opinion . . . [is] a plebiscite or declaration . . . and is not an appropriate subject for the popular initiative"

Written by the judges who cited it.

The opinion

Cutter, J.

(concurring). I concur in the result on the limited ground stated below. Certain 1918 debates (3 Debates, 1281-1301) in the 1917-1918 Constitutional Convention are mentioned in part 10 of the opinion. These 1918 debates convince me that the participants thought that any constitutional convention, occurring after the adoption of art. 48, would be initiated by action of the Legislature seeking a vote of the people consenting to such a convention. The 1918 debate related to a proposal (in fact rejected by the 1917-1918 convention, see 3 Debates, 1298, 1301) for an amendment providing for the calling of future conventions. It raised for discussion the methods of calling a convention which already existed, and those which would exist after the then expected adoption by the people of what is now art. 48. That proposed amendment had already been approved in 1917 (see 2 Debates, 1054, 1062) for submission to the people. The 1917 debates, however, had not been addressed primarily to the problem of amendments of the Constitution by convention.

The proposal now before us seems to me to be of a type, which, if adopted by the Legislature and approved by the Governor, would be in the same category as St. 1820, c. 15; St. 1852, c. 188; and St. 1916, c. 98, each calling an earlier convention. It would be a statute and thus a “law” according to the ordinary usage of those words. The general language of art. 48 concerning the Initiative, standing by itself, seems to me broad enough to permit adoption of such a “law” by use of the Initiative. Such a view seems to me consistent with our authorities. See Opinion of the Justices, *580 226 Mass. 607 , 610; Loring v. Young, 239 Mass. 349, 358 . See also Opinion of the Justices, 233 Mass. 603, 605 . Cf. Opinion of the Justices, 262 Mass. 603, 604-605 (dealing with a proposed public opinion referendum on the repeal of the prohibition amendment). Apart from the 1918 debates, I would think that the language of art. 48 should be so interpreted. See Goldings, The Use of the Popular Initiative Petition for a Constitutional Convention Act, 47 Mass. L. Q. 367.

The 1918 debates mentioned above, however, reveal the contemporaneous understanding of some of the most active participants in framing art. 48. I am persuaded by these 1918 debates that the general language of art. 48 should be construed as not including the somewhat special type of “law” or statute (not expressly described or authorized in the Constitution; see 3 Debates, supra, 1283-1285, 1287-1288, 1295-1296, 1299-1301) designed to biing about a vote of the people to hold a constitutional convention.

The Chief Justice and Mr. Justice Spalding authorize me to state that they concur in this separate opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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