WITH THE IMPENDING vote on the so-called millionaire’s tax constitutional amendment, our elected Legislature should reflect on the purpose of our state’s constitution as a guiding document. This examination of the constitution should help us understand how any proposed amendment fits within the lofty purpose of this foundation of governance, what questions it raises if adopted and, more fundamentally, if a proposal meets the standards of amending this revered document or is more appropriately a matter of legislative deliberation.
The Massachusetts Constitution is the world’s oldest functioning one and the model for the US Constitution. It is a governing guide for our state and society – a “social compact” as the preamble states. Drafted by John Adams, this remarkable document sets forth the purposes and powers of government along with the rights of citizens. Our constitution establishes prohibitions against unreasonable searches and seizure, ex post facto laws, and the public taking of private property without just compensation. It gives residents the right to public education and enshrines protections from government overreach, including freedom of speech and worship, the right to petition the government, and the right to a trial by jury.
These principles endure, but, of course, the state constitution drafted in 1780 needed updating over the years. To date, 120 amendments were adopted by Massachusetts voters, and most deal with fundamental principles like voting rights, creating local governments, the separation of powers, and indeed the process of amending the constitution.
The purpose of the state’s constitution is laid out in its preamble: “It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them…”. The constitution’s purpose is to guide lawmaking and governing, to provide principles for government to follow, and to enshrine protections for residents. The purpose is not to implement specific policies. That work is the purpose of the biennially elected Legislature.
However, on June 9 the Legislature will decide whether to put before voters an amendment that would implement a specific policy. The policy would set a defined income tax rate on a specific segment of our citizenry. The amendment does not protect any of our freedoms. It does not seek to provide participation in government by groups of citizens who are excluded. It does not address the death penalty, voting rights, or the process of creating laws. Legislators should ask themselves: is the text of the proposed amendment a principle we need enshrined in our constitution?
The amendment raises fundamental questions about what our constitution is and the durability of principles over time.
What standards must be met for a proposal to be embedded in our constitution rather than considered by the Legislature? If a tax rate meets the constitutional standard, where do we draw the line? Why not include building heights? High school graduation requirements? Criminal jail sentences? These are all items that are appropriately debated and decided by the three branches of government.
What are the implications of considering a tax rate issue within the deliberately tedious process of amending our constitution? One major drawback is that the language considered in 2019 cannot be changed when the Legislature considers its vote on June 9. Is that language perfect? Has the context changed at all since 2019? Yes, there are dramatic contextual changes.
Why include the specific tax rate and threshold? Because past attempts at adopting the principle of a graduated income tax failed mightily when put before the voters. In total, 16 proposed constitutional amendments failed over a 240-year period. Five of those proposals were to create a graduated income tax, making it the most rejected issue in state constitution history.
This amendment attempts to circumvent voters’ views on the graduated tax principle by saying “Don’t worry, we don’t mean you. We’re going to tax the other person.” The constitution is a document of principles, though, not one with specific tax rates and specific tax brackets. Rather than adopting the principle of a progressive income tax structure – which the state has already engineered within the flat rate structure – this amendment enshrines the principles of targeting specific taxpayers. A cynic could argue that elected leaders are washing their hands of difficult votes by allowing the citizenry to make the decision on increasing taxes on other people.
These questions lead to more questions and issues. Because the policy would be in the constitution, it leaves little room for quickly adapting to the contours and challenges of reality.
What if the new tax affects people who were not meant to be taxed? The label of a millionaire’s tax suggests that it targets earned income with precision. But it does not. Small S-corps and family-owned businesses throughout the Commonwealth will see tax increases under this proposal.
What if it drives employers or talent out of the state? Or what if government doesn’t spend it on education and transportation? Or what if the 4 percent tax is too much? What if it is too little? In those cases, we will be stymied by a constitutional amendment process that delays action for at least four years.
Is it a good idea to create a new tax on income over $1 million? It may be, it may not be. But it is a specific policy and not a principle to enshrine in the state’s constitution. As legislators prepare for the June 9 vote, we urge them to consider the work of Adams and his peers, the framing, and the purpose of our constitution. We urge them to acknowledge that tax rates are not meant to be set this way.
James Rooney is the president and CEO of the Greater Boston Chamber of Commerce.