CAN MASSACHUSETTS CHANGE ITS LAW OF SUCCESSION AFTER THE FACT?

By Cedo Nulli

Just prior to his death, Senator Ted Kennedy sent a letter to Democrat Massachusetts Governor Deval Patrick requesting that the law of succession regarding U.S. Senators representing the state be amended once again in order to fill a vacancy.  Governor Patrick has stated that he will sign the bill, if passed by the state legislature, which is expected.  Prior to 2004, Massachusetts permitted the governor to appoint someone to represent the state in the U.S. Senate in the event of a vacancy.  In 2004, Senator John Kerry was the Democrat nominee for president.  At the same time, Republican Mitt Romney was the governor of Massachusetts.  Fearing that in the event Kerry won, Romney would appoint a Republican to replace Kerry in the U.S. Senate, Ted Kennedy was instrumental in having the state legislature change the law requiring a special election within five months, thus taking the power away from Romney to name a replacement.  Needless to say, it is ironic that there has been a call for the amendment of the law on succession on two separate occasions when its sole purpose is to give Democrats the advantage.  Ask a child if the rules should be changed during the game to give one side an advantage and the response would be, ‘it’s just not fair to do that.’  Politicians and the ruling class have never been accused of being above board or fair.

There is a difference between what occurred in 2004 and what is being requested now.  In 2004, the law on succession was amended in Massachusetts before the fact and in anticipation of an event that never occurred.  Kerry did not win the presidency and thus, a vacancy never occurred.  Now, the20law of succession may be amended after the event has actually occurred- the existence of a vacancy due to Kennedy’s death.  Remember that at the time of Kennedy’s death, the law in place requires a special election to replace him.  It requires the voters to determine who fills his seat, not the Democrat governor of the state.  Most objective, non-partisan people would say the same thing the child would say- ‘it’s just not fair to do that.'

At first blush, changing the law of succession after the event has occurred seems to be an ex-post facto law.  Simply defined, an ex post facto law is a law which is applied retroactively. Article one, section ten of the U.S. Constitution prohibits a state from passing an ex post facto law and Congress is prohibited from doing the same in section nine.  A simple reading of section ten would appear to answer the question rather easily- Massachusetts cannot now amend its law to change the law of succession for it would be making its application apply retroactively, that is, after the fact.

Nothing ever is as simple as it appears, which one of Murphy’s Laws is.  It did not take the U.S. Supreme Court long to muddy the waters on this issue.  In 1798, the court in Calder v Bull held that the prohibition against ex post facto laws only applied to criminal laws, not civil ones.  The plaintiff had obtained property rights via the probating of a will in Connecticut for which there was no right to an appeal.  After being successful, the Connecticut legislature set aside the decree, required a new hearing and the right to an appeal.   Eventually, Calder lost after a new hearing. The plaintiff appealed arguing that this was an ex post facto law because there was no right of an appeal at the time he was originally successful via the probate court’s decree.  Even though the plain language of the Constitution makes no distinction between civil and criminal laws, the U.S. Supreme Court found one.  There were obviously activist judges in 1798 who did not feel a need to read the plain language of the applicable constitutional section.  Had the Founding Fathers wanted to merely prohibit ex post facto laws for criminal laws, all they had to do was write - ‘Congress and the states are prohibited from enacting an ex post facto criminal law only.  Nothing herein shall prohibit the enactment of an ex post facto civil law.'

In logic that would make your head spin, Justice Samuel Chase ruled that this did not violate the ex post facto prohibition because it was a civil law passed by the Connecticut legislature, but noted that a legislature could not pass an ex post facto law that took property from one person and gave it to another.  The fact that this is exactly what happened apparently escaped this learned justice.  It’s ironic that one of the parties to this litigation was named ‘Bull’, because the entire reasoning of Justice Chase was just that.  The Calder case is further proof why the Constitution should be strictly applied and words given their specific meaning.  To do otherwise is to cause confusion and make the document meaningless. Madison in Federalist Paper number 44 advocated the prohibition of ex post facto laws to both civil and criminal laws.

There should be no distinction between ex post facto laws for civil and criminal laws.  In order to have stability and not utter chaos, people need to act pursuant to a firm set of rules in place at the time that the action takes place, whether it is in the civil or criminal realm.  The rules cannot be changed after the fact.  Besides being fundamentally unfair, they can lead to all kinds of mischief.  Those with influence and power can have the law changed after the fact, if a desired result that suits their needs is not initially obtained, whereas the powerless have no such ability to obtain an undue advantage.

In short, there appears nothing to prohibit the Massachusetts legislature to once again changing the law of succession.  This is making a farce out of the notion of fairness and representative government.  It is apparent that Massachusetts will continue to change the law of succession back and forth depending upon who the governor is.  It will now require an appointment by the governor since he is a Democrat. If a Republican governor ever gets elected in the future, expect the law to be changed back to require a special election and expect it to be changed back once again if a Democrat succeeds a Republican as governor.  It is virtually a game of Ping-Pong.

New York City had a two-term limit for the office of the mayor.  Michael Bloomberg was in his second term, liked his job, had nothing better to do with this time and billions and wanted to remain.  He had the law changed to abolish term-limits so he could run for a third term.  Expect the law to be changed back if there is ever a mayor that the City Council does not want to see in office for more than two-terms.

There’s even been talk already of abolishing the two-term constitutional limit on the presidency.  Why not?  We can never get enough of a good thing.  Obama is a young man.  We could have him be our president for the next forty years.  Wouldn’t that be nice? Let’s go even further and amend the Constitution to do away with the office of the president all together and replace it with a king for life.  What we are seeing, especially with the Massachusetts proposal to once again amend the law on succession, is that the notion of a representative republic is becoming a national joke.  The laws are constantly changed by the ruling class to benefit themselves, so they always remain in power and we never get rid of them.  We have a perpetual ruling class instead of citizen representatives, which was what our Founding Fathers intended.  When someone asked Benjamin Franklin what kind of government had been established by the Constitution, he stated, “A republic, if you can keep it.”  Sorry Ben, but it looks like your posterity has disappointed you.