On WPRI-TV’s (CBS 12) Newsmakers this past Saturday, Rhode Island Governor Gina Raimondo stated she opposed amending the state constitution to require that a voter referendum be required to extend tolls to cars, saying that the constitution was reserved for “really, truly, serious fundamental issues”. The Governor’s position on this is nonsensical. If Governor Raimondo or other politicians and advocates truly believe that car-tolls should not be imposed in the future without direct voter approval and — as importantly — if they believe that words written into law should mean something close to what they say, then a constitutional amendment is perfectly appropriate.

In the absence of a constitutional amendment, given the construction of the proposed truck toll law, a future legislature won’t even need to repeal any existing verbiage to add car tolls. All that a car-toll bill would need to include, in addition to the details of the new tolling regime to be imposed, would be a single “notwithstanding” clause, something like…

42-13.1-4. (f) Notwithstanding the provisions of §§ 42-13.1-4(a), 42-13.1-5 or any other law to the contrary, tolls established by the department in fiscal year 2018 shall not be subject to cost-benefit analysis, vehicle-type or voter referendum restrictions.

…and just-like-that, the supposed requirement for a referendum on car-tolls wouldn’t matter at all.  “Notwithstanding” clauses, by the way, are very common in Rhode Island legislation.

A constitutional amendment, on the other hand, couldn’t be overridden by the legislature in this manner.  That is why, in spite of what Governor Raimondo would have you believe, a constitutional amendment is the appropriate means on this issue.

* * *

In the American Federal system, states possess an extensive array of unenumerated powers, unlike the Federal Government, which is only supposed to posses powers that are specifically delegated to it; and in the American system of separated powers, the most powerful branch of state governments with respect to these unenumerated powers is the legislative branch. (This true, even outside of Rhode Island). These unenumerated powers are referred to as the “police power” of the states.  A mid-19th century court opinion where the “police power” was invoked still defines its broad scope today…

The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

Given the tremendous power possessed by legislatures to establish “all manner of wholesome and reasonable laws” that impact citizens, an important question arises: who will control the rules that control the rulemakers?

The answer, of course, plainly visible in the precedent cited above, is that the limits on a legislature and its exercise of the police power are set in the constitution. That is why, in Rhode Island and in other US states, legislatures by themselves cannot alter the constitution; denying the legislature the power to unilaterally alter the fundamental law it operates under prevents the legislative exercise of police power from having no limits.

Thus, if Gina Raimondo and Rhode Island lawmakers truly believe that tolling passenger vehicles should be placed beyond the reach of the legislature and are not merely slipping a few words into the law as meaningless political theater, then according to the most basic tenets of constitutional democracy, the referendum requirement needs to be placed into the constitution. And in the absence of a constitutionally-required referendum, it is entirely fair to describe legislators who support the current truck-toll legislation as supporting tolls on trucks now, with a legislative option for tolls on cars later.

In a related item, the Providence Journal ran an op-ed last week explaining the need for car tolls.