When the militias come and civil war breaks out in the streets of Washington State, I'll blame Seattle Times publisher Frank Blethen, because nobody has done more to undermine the rule of law than his Constitution-hating editorial board. Take, for example, this morning's offensively stupid editorial on Initiative 1053, in which the paper once again demands that the state Supreme Court ignore, you know, the state Constitution:

The league argues that the two-thirds requirement violates Article 2, Section 22, of the state constitution, which says “no bill shall become a law” without majorities of both houses of the Legislature.

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Note the wording. It doesn’t say a bill becomes law with majorities. It says no bill becomes law without majorities. So if voters want to pass a law raising the threshold to two-thirds, it is still true that no bill becomes law without a majority of both houses. Therefore, a two-thirds law does not violate the constitution.

[...] So argued Attorney General Rob McKenna in court papers, and we believe he is correct.

Jesus. Fucking. Christ.

If the editors had actually bothered to read the briefs in LEV v. State instead of just parroting Rob McKenna's press releases, they might have understood why Solicitor General Maureen Hart spent most of her time before the court arguing justiciability. It is because the negative phrasing argument, upon which the state's defense of super-majorities wholly relies, was already rejected by the court in 1998's Gerberding v. Monroe.

Gerberding challenged the constitutionality of I-573, the term-limits initiative approved by voters in 1992, and overturned by the court in 1998. And in its defense of I-573, the state adopted the same failed argument that it is using today (and that the editors "believe" simply because McKenna told them so): That the negative phrasing of Article II, Section 7 establishes a floor for qualifications, not a ceiling.

SECTION 7 QUALIFICATIONS OF LEGISLATORS. No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen.

In Gerberding, both the state and intervenors argued that the negative phrasing of the clause implied a statutory power to add additional qualifications on top of those specified in the Constitution. But citing multiple precedents, including a US Supreme Court decision, the majority rejected this argument, writing that "the Court recognized the qualifications clause provides an exclusive list of qualifications, notwithstanding its negative phrasing."

Like much of the state Constitution, Article II, Section 22—the clause at the heart of the I-1053 dispute—uses similar negative phrasing:

SECTION 22 PASSAGE OF BILLS. No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

Under the crystal clear precedent established in Gerberding, this section should be read to set forth an exclusive list of qualifications for passing a bill, "notwithstanding its negative phrasing." This is settled law. Which makes the Seattle Times' credulous, uninformed, non-contextual embrace of the negative phraseology argument all the more stupid.

Not that the constitutionality of I-1053's supermajority requirement even seems to matter all that much to Blethen and his editors.

If the people of Washington passed a ballot measure declaring that all tax bills had to be signed by Santa Claus, would that be constitutional? ... To answer Justice Chambers’ question of whether the people could demand the signature of Santa Claus: Suppose they did. It would be a demand for no new taxes at all.

Justice Chambers asks if a provision would be constitutional, and the editors reply: So what?

Clearly the people want to set that bar. On no matter of public policy, except perhaps the income tax, have the voters of Washington been any clearer. In a few weeks, they will very likely pass Initiative 1185, resetting the two-thirds bar for another two years.

The success of that measure should be noted by the court.

No it should fucking not! The court should take note of the plain language of the Constitution and the settled law concerning negative phraseology it is obliged to respect under the legal principle of stare decisis. The court should take note of the history of this provision as debated at the 1889 constitutional convention, and of the full context of the Constitution in which various majority thresholds are specified no less than 74 times. (Actually, far fewer than this, but I'm following the Seattle Times' lead in relying on my readers to be too lazy to look up the actual figure for themselves.) The court should take note that when the authors intended supermajorities they specified supermajorities, and that when they wanted to establish a mere floor they specified it as such.

The court should take note of all these things in coming to its decision. But it most definitely should NOT take note of either the policy implications of I-1053 or its popular support! And to urge the court to do so, as the Seattle Times does, is to urge it to undermine the separation of powers that girds our entire system of government.

The editors' cavalier response to the Santa Claus question demonstrates an utter disregard for both the Constitution and the rule of law, but it also displays a total lack of foresight as to how their idiotic logic might ultimately play out. For if one provision of the Constitution can be trumped by a citizens initiative then all of them can. In which case there is no Constitution at all!

Under the Blethen Doctrine a majority of voters could approve an initiative that does just about anything, the Constitution be damned. You know, maybe an initiative to proclaim Tim Eyman a "horse's ass," or something really, truly crazy, like establishing mandatory training, certification, and background checks for longterm home healthcare workers. Or what if we were to pass an initiative seizing ownership of the Seattle Times and handing the publisher reins over to me? Would the editorial board caution the court that "the success of that measure should be noted"...? I don't think so. Nor should it. That would be unconstitutional. Fuck the people.

It is the primacy of the Constitution that ultimately protects us from tyranny and chaos.

Finally, I would just like to point out the irony of an editorial board that can barely write a coherent sentence, instructing the public on how to read one, particularly a sentence embedded in a complex legal document. I mean, had the editors ever bothered to read the Constitution they might have noticed that it is filled with negative phrasing. And had they given the Constitution a really close reading, they might have noticed that this negative phrasing almost always occurs at the beginning of a sentence, whereas qualifications that occur mid-sentence are almost always constructed via positive phraseology.

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Indeed, all this negative phrasing really reveals is a 19th century literary convention that favors beginning constitutional prescriptions with the word "No." It is legal boilerplate. A literary tick analogous to the phrase "thou shalt," which appears over a thousand times in the King James Bible.

As for floors versus ceilings, negative phrasing is routinely used to specify both. Article II, Section 36 says that "No bill shall be considered in either house unless the time of its introduction shall have been at least ten days before the final adjournment of the legislature," explicitly establishing a a floor without a ceiling. By comparison, Article II, Section 19 says "No bill shall embrace more than one subject," clearly establishing both a floor and a ceiling.The negative phrasing has nothing to do with it.

The authors could have specified that bills pass on "at least a majority," regardless of the phrasing. They knew how to do that. But they didn't. And to read "at least" into a constitutional clause where it doesn't exist is almost as stupid as insisting that the Constitution doesn't matter at all.

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