A Most Interesting Time for State Constitutional Law

As the ancient Chinese curse provides: May you live in interesting times. For judges, litigants, and academics interpreting state constitutional provisions, there could not be more interesting or important times. I would emphasize at least three reasons why this is so. The first relates to rapid changes and uncertainty in federal constitutional law proposed by the new 6–3 majority on the U.S. Supreme Court. The second relates to advocates shifting their focus to state constitutional law in response to those changes and their sense that state courts and state constitutions may provide greater protections of constitutional rights than the U.S. Supreme Court and, therefore, a greater likelihood of success for their clients. And the third, which I consider perhaps most important, relates to a more sophisticated understanding of state constitutional law in general that has developed under what commentators describe as the “new judicial federalism.”

The new judicial federalism is essentially when state courts interpret state constitutions independently, and at times differently, from how the U.S. Supreme Court interprets analogous provisions in the U.S. Constitution, thereby providing a double protection of constitutional rights. My main point in this article is that this double protection of constitutional rights is exactly what our federal constitutional system is designed to provide, what we are required to do as state judges when we interpret state constitutions, and what state litigants must consider when they prepare their constitutional arguments before state courts. In this article, I provide a number of examples of how judges and litigants, with a focus on Massachusetts, have performed this task, with a particular emphasis on recent decisions—although, as evidenced by the seminal article written by Chief Justice Herbert P. Wilkins in 1980 that also appears in this issue, Massachusetts has a long history of independently interpreting its state constitution in certain contexts, having done so for a close to half a century. In these interesting times, however, the court no longer strains to justify independent interpretations but rather recognizes them as its right and responsibility and engages in such analysis with increasing frequency and regularity, focusing on the justification of its own state constitutional analysis and not on the justification for adopting a different analysis from that articulated by the Supreme Court for an analogous provision under the federal Constitution. State supreme courts in other states, I suspect, are doing so as well, or might be doing so, if advocates in their states decide to present such state constitutional claims and do so in a convincing manner.

The first reason why this is such an interesting time is pretty obvious. The new 6–3 conservative majority on the U.S. Supreme Court is fundamentally reshaping federal constitutional law in a number of different areas, with Dobbs being a recent dramatic example. As a result, federal constitutional law is more uncertain and unclear than it has been for a long time, with the Supreme Court regularly reversing established precedents and issuing multiple concurring and dissenting decisions in a number of the most important cases. Retrenchment in particular—that is, the reversal or cutting back on federal constitutional protections—has already stimulated advocates to argue that analogous or other provisions in state constitutions protect such rights even if the federal Constitution no longer does so. Indeed the U.S. Supreme Court has, in a number of cases involving retrenchment or reversal of federal constitutional protections, expressly made the point that states may provide greater protection, even if the federal Constitution should not be interpreted to do so.

In fact, national organizations such as the American Civil Liberties Union (ACLU) and the Brennan Center for Justice, in response to this federal constitutional upheaval, have developed important new initiatives focused on state constitutional analysis. The ACLU has created a state constitutional litigation group, and the Brennan Center puts out regular updates sharing the latest state constitutional cases and research, which is a very valuable resource for those of us tracking state constitutional law across the country. In a number of the Massachusetts cases I discuss here, the ACLU and other advocacy groups interested in the advancement of state constitutional law represented parties or submitted amicus briefs helping to develop the state constitutional claims.

Separate and apart from these specific, recent initiatives, there are also much richer sources of state constitutional analysis to draw on than there have been in the past, providing state supreme courts with the historical research, comparative state constitutional caselaw, and theoretical and conceptual understanding of state constitutional law that we need to do state constitutional law more informatively. The idea that state courts are required to interpret state constitutions in lockstep with the U.S. Supreme Court’s interpretation of analogous provisions in the federal Constitution, over the past 40-plus years, has gradually yet convincingly been rejected by most courts and commentators, including the U.S. Supreme Court. There is nothing in the design of the federal Constitution or its original understanding that requires states to adopt the Supreme Court’s interpretation of analogous provisions in the federal Constitution as the default or lockstep setting for interpreting parallel provisions in state constitutions. Indeed, the opposite is true. Federalism is instead designed for dual sovereignty, including a double protection of individual rights, a division of authority between the states and the federal government, and even a duty to push back on each other to prevent overreaching to further protect our liberty. State courts also do not need to identify subtle differences in text or distinct state traditions to justify a different interpretation. State courts are fully empowered and expected to independently interpret analogous provisions in their state constitutions, digging deeply into the text, history, and purpose of those provisions, and thereby provide greater protections of individual rights if they are presented with appropriate argument and analysis, and they conclude the state constitution provides greater protection than the federal Constitution.

The reaction to Dobbs is illustrative. After the Supreme Court found no federal constitutional protection for abortion, overturning its own precedents for the last 50 years and expressly returning the question of the right to an abortion to the states, the focus turned to state constitutional law to provide for such protection. Massachusetts and a number of other states already had such state constitutional protection for abortion in place through existing state constitutional caselaw. The first state supreme court case decided after Dobbs occurred in South Carolina, where the South Carolina Supreme Court found such protection in its state constitution, although after a judicial election, the court reversed course. The original decision, in my view, relied on language that appears to be more directed at unreasonable searches and seizures than the liberty or privacy provisions more commonly understood to support the right to an abortion, which I believe made the South Carolina court’s analysis somewhat unconvincing. Indeed, 11 states have specific constitutional provisions recognizing the right to privacy and all 50 have liberty-protecting rights, and a number of state supreme courts have been asked to revisit those provisions after Dobbs. In another quite interesting and important development, the people in a number of different states took the initiative themselves and passed state constitutional amendments specifically protecting the right to abortion. They did so in so-called red states as well as blue states.

Other courts, including the one I sit on in Massachusetts, also have already separated their state constitutional analysis from the U.S. Supreme Court’s historical, originalist approach to substantive due process more generally. In a decision rejecting a right to assisted suicide, the Supreme Judicial Court nonetheless made clear that it would interpret the state constitution’s substantive due process provisions differently from how the new majority of the Supreme Court interprets analogous provisions of the federal Constitution. The court emphasized that we do not adopt the historical originalist approach when interpreting our own state constitution’s substantive due process provisions and consider Dobbs a departure from prior U.S. Supreme Court precedent such as Obergefell v. Hodges, its gay marriage decision, which does not define fundamental rights in such a time-defined way. In the euthanasia decision, we emphasized that such narrow historicism can perpetuate past prejudices against women and minorities.

Another state constitutional case that we recently issued, called Barron v. Kolenda, fleshes out a number of the more general points I am trying to make here. Interestingly, the advocates in this case preferred to bring the case in state rather than federal court and sought to have the case decided on state rather than federal constitutional grounds, going so far as dropping their federal claims to ensure the case was decided on state constitutional grounds. Importantly for the court, an independent interpretation of state constitutional law also allowed our court to avoid having to weigh in on bitterly contested and highly uncertain issues of federal constitutional law, making our task as state supreme court justices more straightforward and insulating our decision from Supreme Court review. Finally, the key state constitutional provision at issue, the right to petition and redress grievances, also had a rich, distinct history to draw on; indeed, it was written by John Adams and served as a model for the analogous provision in the federal Constitution. The advocates did a very good job of bringing this state constitutional history to the court’s attention.

So what was this case about? The plaintiff had come to a public meeting of a municipal board of selectmen to complain about various actions of the municipal officials, including their recent violation of open meeting laws, which had already led to an enforcement action by the state attorney general. The plaintiff also objected to overspending by the board. When she accused the municipal officials of violating the open meeting law, which they had undisputedly done, the chair accused her of slander and threatened to have her removed from the public meeting on the grounds that she was violating the civility provisions that the town had enacted, which required that “All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks.” When she followed up by calling him “a Hitler,” he ended the meeting.

Advocates brought suit, claiming that the civility code violated her state and federal constitutional free speech rights and her state and federal constitutional rights to petition and assemble. The text of article 19 of the state constitution provides: “The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.” When the case was removed to federal court, the advocates dropped all their federal constitutional claims, and the case was sent back to state court.

After parsing the text, history, and purpose of the provision, including the writings of John Adams on the subject and the actions of his cousin Sam Adams, who was also on the drafting committee, we wrote: “As written, this provision expressly envisions a politically active and engaged, even aggrieved and angry, populace.” We, therefore, concluded that “[a]lthough civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating” the state constitutional right to petition. As we wrote, the petition and assembly provision “reflects the lessons and the spirit of the American Revolution. It arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal and disrespectful to public figures, as the colonists eventually were to the king and the crown’s representatives in Massachusetts.” Our interpretation of the state constitutional provision was not guided by federal interpretation of the right to petition in the federal Constitution. Indeed, that provision has not been given much attention or independent significance apart from the First Amendment. The First Amendment caselaw on public meetings also is confusing, with the circuit courts divided over the proper standard of review to apply to speech in what the federal courts refer to as limited or designated public forums. By relying exclusively on state constitutional law, we avoided this federal thicket and insulated our decision from Supreme Court review.

Although the cases discussed so far in this article have involved civil rights, criminal defendant rights are among the most, if not the most, actively litigated areas of state constitutional law, with none more so than state constitutional search and seizure provisions.

In Massachusetts, the state counterpart to the Fourth Amendment appears in Article 14 of the Massachusetts Constitution. Although the text in our state constitution is not materially different from the text of the Fourth Amendment, we often have interpreted it since 1985 to provide greater protection than the U.S. Supreme Court finds for criminal defendants under the Fourth Amendment. We have done so by choosing to balance the interest of the citizens in their privacy and the police in protecting public safety differently than the U.S. Supreme Court balances such interests under the Fourth Amendment. In an important case called Commonwealth v. Gonsalves, in which we rejected the Supreme Court’s allowance of exit orders for drivers and passengers as a matter of course in ordinary traffic stops, we explained: “We, of course, respect the United States Supreme Court’s judgment in the matter under the Fourth Amendment. That judgment was reached after balancing the interests of the police against the liberty interests of citizens, with the Court’s concluding that the former should prevail over the latter. [However], we conclude that, under art. 14, the balancing of interests requires that Massachusetts citizens should not be subjected to unjustified exit orders during routine traffic stops.”

In these “interesting times,” when it is now well-established that Article 14 may provide greater protection than the Fourth Amendment in a variety of contexts, and we are free to balance the rights of the police to protect public safety and citizens to personal privacy quite differently under Article 14, we often start and end with our own caselaw in Massachusetts. We have done so recently in significant cases when presented with federal caselaw that is unsettled or even conflicting.

The last specific area of state constitutional law that I will address is cruel or unusual punishment. Here, the Supreme Judicial Court has developed a distinct state constitutional interpretation placing particular emphasis on fact-finding based on empirical research on brain and social science regarding juveniles and young adults. The court has refused to allow sentencing decisions that cannot be made with integrity consistent with that science, requiring what I described in a concurrence as a “convergence of science and law.”

The Supreme Judicial Court’s cutting-edge state constitutional law decisions followed in the wake of a series of opinions by the U.S. Supreme Court interpreting the Eighth Amendment rights of juveniles. In those cases, the U.S. Supreme Court prohibited the imposition of the death penalty on juveniles, life without the possibility of parole for nonhomicide offense for juveniles, and mandatory imposition of life without the possibility of parole even in homicide cases. In so doing, the Court consistently referenced empirical research in the fields of brain science and social science to justify in part its holdings, explaining that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,” supporting a conclusion that juveniles were less culpable and more capable of reform than adult offenders.

In 2013, the Supreme Judicial Court in Diatchenko held that all life sentences without the possibility of parole for juveniles, and not just mandatory life sentences without the possibility of parole, were unconstitutional under Article 26 of the Massachusetts Declaration of Rights. The Supreme Judicial Court began by recognizing its “inherent authority to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” It then concluded on the basis of “current scientific research on adolescent brain development” that “a conclusive showing of traits such as an ‘irretrievably depraved character’ can never be made, with integrity, by the Commonwealth at an individualized hearing to determine whether a sentence of life without parole should be imposed on a juvenile homicide offender.” Whereas the Supreme Court only required that such sentences be discretionary to allow the sentencing judge to take into account the defendant’s “youth and attendant characteristics” to decide whether the defendant was permanently incorrigible, the Supreme Judicial Court imposed a categorical rule precluding all life without parole sentences for juveniles.

In 2023, the Supreme Judicial Court returned to this issue in Commonwealth v. Mattis, but in a case involving 18- to 20-year-olds. In the interim, the U.S. Supreme Court issued two decisions, Miller and Montgomery, which seemed to make discretionary life sentences without the possibility of parole for juveniles rare because it stated that “even if a court considers a child’s age before sending him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’” As the Court further explained, life without parole is justified only for “the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible.” Then, in Jones v. Mississippi, the new majority of the U.S. Supreme Court, over a vehement dissent, declined to require a sentencing court to actually make a determination that a juvenile was irreparably corrupt before sentencing him to life without the possibility of parole. The Court further held that juveniles could be sentenced to life without the possibility of parole under the federal Constitution so long as the sentence is not mandatory and the judge has the discretion to impose a lesser punishment. In so doing, the Court also again stated that its holding did not prevent states from providing greater protections.

In Commonwealth v. Mattis the court did just that. Not only did the court preserve its categorical protection of all juveniles from being sentenced to life without the possibility of parole, but it extended this protection to 18- to 20-year-olds, relying heavily on brain and social science establishing that 18- to 20-year-olds share the same essential characteristics as juveniles. In doing so, the court did not rely on its own reading of scientific articles but rather required the development of a full factual record by a trial court, with the testifying experts being subject to full cross-examination. After holding such an evidentiary hearing, the trial judge made findings that the brain and social science established that 18- to 20-year-olds, like juveniles, both are less culpable and have a greater capacity for change than those age 21 and over. In prohibiting judges from imposing sentences of life without the possibility of parole on juveniles and young adults as cruel or unusual punishment under the state constitution, and doing so because juveniles and young adults cannot reliably be found to be irretrievably depraved at the time of sentencing, the Supreme Judicial Court has clearly departed from the U.S. Supreme Court’s Eighth Amendment jurisprudence.

I will end this article with the point I consider the most important: If state courts do not perform this nondeferential, independent review of state constitutional law and provide a double protection of constitutional rights, we are not fulfilling our duties as shared guardians of American constitutional rights. As Justice Robert H. Jackson famously stated, the U.S. Supreme Court is not final because it is infallible. It is infallible because it is final. For federal constitutional law, that, of course, remains true. In state constitutional law, however, the U.S. Supreme Court is not final and, thus, not infallible. Instead, state supreme courts have the final say on the interpretation of their own state constitutional provisions. As California Supreme Court Justice Goodwin Liu has written: “the default approach treats federal precedent with a presumption of correctness that has no sound basis in our federal system.” To perform their task correctly, state courts must independently study the text, history, and purpose of their constitutional provisions. If that examination and its application produce a different constitutional interpretation than that provided by the U.S. Supreme Court for analogous provisions of the federal Constitution, that is well within the right and responsibility of the state supreme court interpreting its own constitution. Indeed, upheaval and uncertainty in federal constitutional law these days make this independent state constitutional analysis particularly important.

Courts, of course, cannot do this without the assistance of the bar. If advocates fail to raise state constitutional claims, they are doing their clients a great disservice. They have waived the claim by not raising it. If they do raise it, as they should, they also must do the substantial research required to make original state constitutional claims. Courts need their assistance to perform this difficult and time-consuming legal and historical work. In the words of one of the foremost experts on state constitutional law, Oregon Supreme Court Justice Hans Linde, “to make an independent argument under the state [constitution] takes homework—in texts, in history, in alternative approaches to analysis.” Importantly, the state constitutional arguments also need to be developed in the first instance at the trial level. In certain areas of state constitutional law, such as cruel or unusual punishment, this also may require empirical factual research as well as the hiring of experts.

All of this is time well spent. As a number of commentators have emphasized, state constitutional interpretation enriches the American constitutional dialogue. Our dual federal constitutional structure ensures that a single court does not have exclusive control of all American constitutional interpretation and the rights and liberties of all Americans. Instead, “fifty different courts will talk with each other, as well as the federal courts,” about the meaning of America’s constitutional rights, thereby testing and refining the interpretation of these rights.” As has been demonstrated many times in the past, this type of comparative analysis improves constitutional analysis and often has resulted in rethinking by the U.S. Supreme Court as well. The Massachusetts Supreme Judicial Court’s trail-blazing decision in Goodridge, declaring the prohibition against gay marriage unconstitutional under the state constitution and setting the stage for the Supreme Court’s decision in Obergefell, is a classic example of how courts can and do learn from one another.