Michael Greenebaum’s thoughtful Opinion piece, “The Burden of the Charter and the Voice of the Public” in the Amherst Indy series called “The Council at One Year” hits squarely on a fundamental flaw of the Charter under which Amherst is now governed:
“A government with no separation of powers has no real capacity to listen because it really has no need to listen.”
As we all have been taught, there are three types of governmental “powers”: the legislative, the executive, and the judicial. Since Montesquieu’s Spirit of the Laws (1748), if not before, principles of good government have counseled that these three powers be in the hands of three different, and separate, organs of government.
Of course, Amherst has no judicial power. For us, the courts of the Commonwealth exercise this. The powers left to the Town are those of the legislative and executive. Amherst’s Home Rule Charter vests these powers in a single body, the Amherst Town Council. This Council exercises “all the powers of the Town….” (Charter, Section 2.5). The Council hires and can fire the Town Manager. Thus, having an “Executive Branch” headed by an appointed Town Manager still leaves the executive powers in the Council’s hands.
What does this mean for our government?
In Book X, Montesquieu gives a tweet-worthy rationale for separating the legislative and executive powers from one another:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
This is not a slam at the Council. Its members have devoted more time and effort and angst in the past year, trying to make the Charter work, than anyone should have to. It instead points to a structural flaw in the Charter that no such effort, however well-meant or unremitting, can overcome.
It is a structural flaw, furthermore, that should never have been allowed. This is because it violates the Massachusetts Constitution of 1780. That Constitution’s first Part is the Massachusetts Declaration of Rights. Its Article XXX provides, in full: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men”. (Italics supplied).
“[S]hall never…shall never…shall never….” No wiggle room there. Could John Adams and the Massachusetts Constitutional Convention of 1779 have made this mandate for separation of powers any more clear? Or could they have made their rationale for this any clearer? “[A] government of laws and not of [persons],” let us say. This is, after all, the invariable U.S. touchstone for democratic government.
But does the Massachusetts Constitution’s required separation of powers apply to municipal charters as well as to “the government of this commonwealth”? It certainly looks that way. Since 1966, the 89th Article of Amendment to the Massachusetts Constitution has addressed this requirement precisely in the context of such charters. In pertinent part, this provides: “The provisions of any adopted or revised charter or any charter amendment shall not be inconsistent with the constitution ….” (Article LXXXIX, Article II, Section 2. Italics supplied.)
“[S]hall not….” There’s Article XXX’s unambiguous prohibition again. Well, despite that clear imperative, this fundamental provision of Amherst’s Home Rule Charter IS “inconsistent with the constitution”: it fails to separate the legislative and executive powers.
Yes, I’m aware that our publicly-funded UMass Donahue Institute was intimately involved in advising Amherst’s Charter Commission. If anyone can shed light on the Donahue Institute’s disregard of this half-century-old constitutional amendment, please do.
If Amherst’s Charter is unconstitutional, by the way, does this raise additional issues concerning Town Council, its authority, or other Charter provisions? I am not going there today. But I do think that we must face these questions.
Right now, whether Amherst residents’ voices count depends essentially on whether those who happen to be serving as Town Councilors at a given time happen to care. We, however, need, deserve, and have a constitutional right to a form of Town government in which those governing have, as Michael Greenebaum puts it, a real capacity to listen to us…because they really need to listen to us.