The Massachusetts Constitution - the Last Thirty Years

By Wilkins, Herbert P. | Suffolk University Law Review, Spring 2011 | Go to article overview

The Massachusetts Constitution - the Last Thirty Years


Wilkins, Herbert P., Suffolk University Law Review


The Constitution of the Commonwealth has never been more significant for the rights of individuals than in the past thirty years. Although the greater impact has been on the rights of criminal defendants, the Constitution's influence on civil relationships has been substantial, as indicated most particularly by Goodridge v. Department of Public Health (2) on the right to same-sex marriage.

In 1980, this law review published my article comparing the treatment of similar provisions of the Federal Constitution and the State Constitution. (3) My current effort is, in a sense, an updating of the 1980 article. Before 1980, there were only a handful of cases that foretold the impending impact of the Supreme Judicial Court's independent treatment of provisions in the State Constitution that had parallels in the Federal Constitution. For example, Commonwealth v. Soares (4) barred racial discrimination in the use of peremptory challenges to prospective jurors well before the Supreme Court did so in Batson v. Kentucky. (5)

As will be seen, many Massachusetts cases rejected positions then taken by the Supreme Court, and others reached results unlikely to be acceptable to it. Thus, this article, unlike the 1980 article, identifies many instances in which the Constitution of the Commonwealth, particularly its Declaration of Rights, dictated positions not established under the Federal Constitution. The most that I could say in the 1980 article was that

   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... they are intensifying, suggesting that the
   personal freedoms of the Declaration of Rights may be about to
   receive new attention. (6)

Balanced against the numerous instances of greater rights under the Constitution of the Commonwealth, especially its Declaration of Rights, are the many examples of the Constitution of the United States, particularly the Bill of Rights, overriding the law of the Commonwealth. (7) Massachusetts, for example, did not initially develop its own exclusionary rule. However, after the Supreme Court prescribed an exclusionary rule applicable to the states, the Supreme Judicial Court went beyond this mandate in certain instances to exclude evidence. The reach of freedom of speech under the Federal Constitution has been far greater in many areas than anything identified in the Constitution of the Commonwealth. In fact, a significant portion of my 1980 article discusses the inevitable losing battle that the Supreme Judicial Court waged with the Supreme Court over publication of assertedly obscene books. (8) Recently, the Supreme Judicial Court has had to adapt to the limitations imposed by Crawford v. Washington (9) on the use of "testimonial" hearsay and to the prohibition of Melendez-Diaz v. Massachusetts (10) on the use of laboratory reports (and not the technician who did the tests) to prove that an item seized was a controlled substance. (11) Even more recently, the Supreme Court has held that the Second Amendment, through the Fourteenth Amendment, applies to the states and grants an individual the right to have a gun in the home. (12) Justice Scalia, in writing to uphold a Second Amendment right to have a gun in one's home, asserted in relation to art. 17 of the Massachusetts Declaration of Rights (and three other state constitutional provisions) "that the most likely reading of... these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes." (13) This assertion blatantly ignores the thorough opinion of Justice Kaplan in Commonwealth v. Davis, (14) which convincingly holds that art. …

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