Hidden Link

June 22, 2025

By JEROLD DUQUETTE and LAWRENCE FRIEDMAN

It should not be surprising that, last year, 72 percent of Massachusetts voters endorsed the ballot initiative designated as Question 1. That measure granted the Office of State Auditor the authority to audit the state Legislature, without its consent, with the aim of enhancing legislative transparency and accountability.  

Who would be opposed to more transparency and accountability? The problem is that the law is almost certainly unconstitutional. It lays waste to the principle of legislative independence by undermining both the separation of powers and the constitutional grant of authority to each chamber of the General Court to control its internal rules and procedures.  

Nonetheless, state Auditor Diana DiZoglio continues to maintain that the voter-approved law grants her the authority to audit the Legislature as she might a state agency. She has submitted audit requests and complained in public about the failure of each legislative branch to respond; at the same time, the attorney general has yet to approve any kind of enforcement action on the auditor’s behalf. 

In our judgment, the audit question amounts to an act of constitutional vandalism, irrespective of the merits of the policies and sentiments that led to its approval. It is an example of the mischief that can result from the initiative process set out in Article 48 of the Massachusetts Constitution, and why this seems a good time to consider amending the initiative process to prevent future politicians and activists from accomplishing constitutional change “on the cheap” and thereby weakening (intentionally or not) the integrity of the oldest written constitution in the world. 

Proposed and ratified more than a century ago, Article 48 represented a progressive effort designed to close the distance between public opinion and public policymaking outcomes. Lawmaking through direct democracy was intended to allow the people to engage in a more dynamic form of lawmaking, one capable of meeting the needs of a rapidly changing world.  

But the framers of Article 48 did not seek to jettison the commitments that animate the original 1780 constitution—not least of which was the principle of separation of powers, which John Adams believed crucial to effective democratic governance.  

Article 48 therefore includes a list of “excluded matters”—constitutional provisions that cannot be changed by popular vote. Initiative proposals accordingly must be reviewed by the attorney general before being allowed on the ballot to ensure that they do not address “excluded matters.”  

The list of such matters reflects what the Article 48 framers saw, in 1918, as constitutional guarantees vulnerable to challenge at the polls on Election Day, where the constitutional checks and balances that safeguard representative democracy are not front and center. Excluded matters include those that seek to make a specific appropriation of money from the state treasury or that relate to the right to trial by a jury, the freedoms of speech and the press, or the right to peaceable assembly.  

At the time of Article 48’s adoption, neither legislative independence, nor the separation of powers that facilitates it, were thought to be particularly vulnerable. Both remain exceptionally resilient in Massachusetts.  

As a result, when the audit initiative came before the attorney general for review under Article 48, that office could not act on the measure’s obvious constitutional problem because the “excluded matters” do not specifically include the authority of each branch of the Legislature to control its own functioning.  

The framers of Article 48 could not have imagined the ways in which determined activists today can pull together support for initiative efforts far more quickly and easily than in 1918, and that such efforts might well be fueled by fundamental misunderstandings about how government works—if not outright misinformation. In such an environment, Article 48’s framers likely would have appreciated the need to protect a core component of John Adams’s vision for representative government in the Commonwealth—namely, that legislators should be beholden, first and foremost, to their constituents, and that executive branch officers should not have the power to interfere with the legislature’s basic functioning.  

There may well be other core principles in the Massachusetts Constitution that should qualify today as “excluded matters,” but the audit question directly implicates two provisions that are vital to legislative functioning and the separation of powers:  Part II, chapter I, section 2, article 7, which authorizes the Senate to “choose its own president, appoint its own officers, and determine its own rules of proceedings”; and Part II, chapter I, section 3, article 10, which provides the same for the House of Representatives.  

By amending the state constitution to exclude these provisions from modification or alteration through direct democracy under Article 48, the Legislature can be protected from efforts to impede the long-established ability of senators and representatives to represent the people of the Commonwealth.  

Indeed, the critical importance of these provisions to the functioning of the Legislature has been recognized by the Supreme Judicial Court. In a case called Paisner v. Attorney General, the court concluded that the authority of each house to manage its own affairs “is a continuous power absolute and beyond the challenge of any other tribunal.”  

In addition to providing the authority for lawmaking by initiative, Article 48 spells out the means by which the constitution itself can be amended, a process that turns on approval by voters and the Legislature.  

It is time to engage this process to secure the Legislature’s independence from the vicissitudes of proposals animated by the popular sentiment of the moment, rather than by the view embraced by Adams and the framers almost 250 years ago—that the people themselves stand as the best check on their elected representatives. 

ABOUT THE AUTHORS

Jerold Duquette is a professor of political science at Central Connecticut State University. He is a senior contributor at MassPoliticsProfs.org, and co-editor of The Politics of Massachusetts Exceptionalism: Reputation Meets Reality. Lawrence Friedman teaches constitutional law at New England Law | Boston. He is the co-author of The Massachusetts State Constitution, published by Oxford University Press.  

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