Excerpt from “Judicial Treatment of the Massachusetts Declaration of Rights in Relation to Cognate Provisions of the United States Constitution”

Introduction

The 200th anniversary of the Constitution of the Commonwealth is a good time to pause to compare the Supreme Judicial Court’s treatment of the Declaration of Rights in the Constitution of theCommonwealth with the United States Supreme Court’s treatment of parallel provisions in the Constitution of the United States. Most of the basic principles articulated in the Declaration of Rights were expressed subsequently, although often more tersely, in the federal Constitution, largely in the Bill of Rights. To keep this article within a reasonable scope, a limited number of topics have been selected for discussion—freedom of speech, liberty of the press, freedom of religion, substantive due process, and the rights of criminal defendants. Within those selected topics, the object is more to determine the attitude, and any changes in attitude, of the Justices of the Massachusetts Supreme Judicial Court over the years than to engage in an exhaustive analysis of cases.

Where there are similar provisions in the Declaration of Rights and in the Constitution of the United States, the Supreme Judicial Court understandably tends to follow the lead of the United States Supreme Court. If the Supreme Court has expressed broad rights under the federal Constitution, it is often superfluous to determine state constitutional principles in the same area. The state court is bound by federal requirements and may invoke the state constitution only to provide greater safeguards.

In recent years, the Supreme Judicial Court has exercised the option to impose higher state constitutional standards in some instances and, in many other instances, without exercising that option, the court has explicitly acknowledged its authority to act independently under the state constitution. While these rumblings are not yet powerful and appear only in certain constitutional areas, they are intensifying, suggesting that the personal freedoms of the Declaration of Rights may be about to receive new attention.

Conclusion

In the face of the United States Supreme Court’s expansive and expanding views of the reach of provisions of the Constitution of the United States in the past two centuries, the establishment and maintenance of independent state constitutional principles have not been easy.

At least until recently, the Massachusetts Supreme Judicial Court has not taken as broad a view of the Declaration of Rights in the areas of freedom of religion, freedom of speech, and perhaps liberty of the press as the Court in Washington has of the First Amendment. The differences as to freedom of religion may be explained by significant differences in the language of the two constitutions. The Supreme Court of the United States has traditionally taken a more expansive view of freedom of speech than has the Massachusetts court. On the other hand, there is some support for the view that the Supreme Judicial Court is now more receptive to freedom of speech arguments than it once was and than a majority of the United States Supreme Court now is, at least in certain areas. In the possibly developing area of liberty of the press, to date, the two courts have taken much the same position. Independent liberty of the press arguments, however, founded on the Declaration of Rights, have not often been advanced.

As to economic due process, the United States Supreme Court has been the leader in expressing the applicable principles until recent decades. Today, however, the Supreme Judicial Court probably is more willing to accept an economic due process argument than is the Court in Washington. This conclusion is warranted not so much because the Supreme Judicial Court is aggressive in asserting its views on economic legislation but because the United States Supreme Court has substantially abandoned the field.

In the area of the constitutional rights of criminal defendants, the Massachusetts court has not been behind the Supreme Court in all respects over the past 200 years. The Warren Court’s enlargement of the rights of criminal defendants under the United States Constitution largely swept over the Supreme Judicial Court’s views of parallel provisions in the Declaration of Rights. Recently however, there are signs that the Declaration of Rights may afford greater safeguards than cognate provisions of the Constitution of the United States. This has been most notable in the area of capital punishment. Certainly, it would be wrong to ignore the possibility that, in a given instance, the Declaration of Rights would furnish protections not available under the Constitution of the United States.

The Declaration of Rights has served the citizens of the Commonwealth admirably over the past two centuries. The Supreme Judicial Court has never treated it as a static document. Just as judicial interpretations of the federal Constitution have evolved over time, the Supreme Judicial Court’s interpretation of the Declaration of Rights has changed. Today, consciousness of the potential in the Declaration of Rights is at a higher level than at any other time in the document’s history. One can overemphasize this potential, encompassed as it must be in our federal system by the overriding provisions of the Constitution of the United States. On the other hand, the Declaration of Rights was aprincipal source for many of these overriding provisions. Accordingly, citizens of the Commonwealth might view more with pride than alarm the expression by the Supreme Court of the United States of controlling interpretations of those constitutional principles.