Bare Minimums of Judicial Federalism

Anthony Sanders · December 23, 2022

We at the Institute for Justice have long argued that the phrase “due process of law” has a substantive component to it. When this language is applied to the government it, certainly, must go through certain processes before taking away life, liberty, or property. But this language also substantively protects against arbitrary government action. The state can only restrict your rights to life, liberty, and property if it has a good reason and it must demonstrate, with real evidence, that a restriction is warranted.

The modern Supreme Court has said that something like this standard applies to the due process clauses of the Fifth and Fourteenth Amendments, but only for a few rights. For other rights, like the right to earn a living, there is a low level of substantive protection but the need for a good reason is much diminished and the need for evidence is almost eliminated. We’ve said many times how this bifurcated system of “fundamental rights” versus everything else doesn’t make any sense. If you’re interested in digging into the issue I recently wrote a piece at Discourse Magazine that lays it out in the wake of the Supreme Court’s recent Dobbs opinion.

Unfortunately this bifurcation of rights also takes place at the state constitutional level. Last week the Massachusetts Supreme Judicial Court—the state’s highest court—issued an opinion that reaffirmed the bifurcation, and (probably unintentionally) revealed the poverty of its due process jurisprudence as it relates to the actual text of the Massachusetts Constitution. The opinion does push back on some of what the U.S. Supreme Court has said, but only to assert a different kind of methodology for bifurcating rights, not the bifurcation itself. For this post I’m going to focus on just two aspects of the opinion: its disconnect from the state constitution’s text and its seeming divergence from the what the U.S. Supreme Court has said. (The underlying case involved a challenge to the state’s ban on assisted suicide, and the court rejected the challenge and ruled there is no fundamental right to assisted suicide under the state constitution. But what follows takes no position on that conclusion or the issue.)

Due process with no “due process”

Although amended many times since it was adopted in 1780, the Massachusetts Constitution is the oldest continually-in-force constitution in the world. With a venerable instrument like that wouldn’t you want to brag about what it says? No, says the state’s highest court. Citing cases where it’s articulated the same thing before, in Klinger v. Attorney General the court broadly proclaimed that “[t]he Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights guarantee individuals due process of law.” That’s all the textual analysis the court did of the state constitution. There’s not even a footnote providing what those three articles actually say.

Okay, a reader might conclude, so the words in those three provisions must be the same as in the Fourteenth Amendment’s due process clause? But if that’s true, isn’t it kind of odd that there’s three of them, when only one would do?

Yes it is kind of odd. What’s even more odd is that the words “due process” do not appear in any of them. Here is their actual text:

Art. 1. All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. [As amended by art. CVI.]

Art. 10. [In relevant part] Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. . . .

Art. 12. [In relevant part] No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defense by himself, or his council at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. . . .

There are a lot of words in those provisions. Indeed, there are lots of words that could protect all kinds of liberties. But nowhere is the phrase “due process.” Now, the very last quoted sentence, which protects “life, liberty, or estate” does have the same meaning as a typical due process clause. It is a “law of the land clause” whose language is lifted straight out of Magna Carta. And since the time of Lord Coke in the early seventeenth century such a clause has been understood to have the same meaning as “due process.” So why didn’t the court just cite to this language and move on? That would have been perfectly fine legally, historically, and linguistically.

For some reason, though, it wanted to draw the meaning of “due process of law” from the other articles as well. (I realize that the court is mostly just following its own precedent on this point, so when I say “it” I mean that precedent as well, not just the justices behind the instant opinion.) But those other articles add more, non-“due process,” protections. Article 10 proclaims there’s a “right to be protected” by society “in the enjoyment of his life, liberty and property”. And, most importantly of all—to my mind at least— Article 1 broadly protects a full range of rights. As we’ve discussed here before, it is a Lockean Natural Rights Guarantee taken from language originally drafted by George Mason in May 1776 which he took from the pages of English philosopher John Locke. I mean, it protects a right of “enjoying . . . liberties.” If you’re talking about unenumerated rights (which is what “substantive due process” cases are generally about) why latch onto words that aren’t even there—“due process of law”—when “enjoying and defending their lives and liberties” could do the job? And if not, why not just use words that actually do mean “due process of law”—the law of the land clause? This isn’t just a-textualism. It’s anti-textualism.

Lockstep without a lock

Moving along from issues of constitutional language, there’s another problem with the opinion (again, wholly apart from the substantive issue of the constitutional protection of assisted suicide). Because the court is working within the modern substantive due process framework, the primary question is whether the right at issue is “fundamental” and therefore protected by a high level of scrutiny, or whether it’s not and therefore only protected by the rational basis test. Looking at its own precedent and the precedent of the U.S. Supreme Court concerning the U.S. Constitution’s due process clauses, the court saw two options. One is the Glucksberg standard which the U.S. Supreme Court has endorsed at various times, including in last summer’s Dobbs decision. Under that methodology the right at issue has to be framed very narrowly and it also has to be “deeply rooted” in history and tradition. The other, most recently articulated in the 2015 marriage equality decision of Obergefell v. Hodges, isn’t as concerned with the level at which the right is articulated, and gives the court more flexibility in using its “reasoned judgement.” (What does “reasoned judgment” mean? Good question for which there isn’t a non-embarrassing answer. But we’ll leave that for another day.) The court rejects the Glucksberg standard and states that under the Massachusetts Constitution the court will use the standard of Obergefell and other cases going back to the 1965 Griswold decision, the foundation of modern federal substantive due process jurisprudence.

My point isn’t to pick on one standard or the other (see my essay in Discourse for that). It’s to point out that these aren’t the only two options available. As the court itself emphasizes, it has the freedom to interpret the Massachusetts Constitution independently from how the U.S. Supreme Court interprets the U.S. Constitution. Putting aside the fact that the text of the two constitutions isn’t even the same, that means that the Massachusetts court isn’t limited to just the standards that the U.S. Supreme Court comes up with. It seems the court thinks it is limited to two options: what the U.S. Supremes did today or did yesterday. But not additional options that might be better, or more appropriate to the Massachusetts Constitution itself. For example, it could reject the fundamental/nonfundamental dichotomy and give a broader protection of individual rights. That’s something that the soaring language of Article 1, quoted above, seems to cry out for. Instead, the court boxes itself in to following what a different court, interpreting different text, has said. The Massachusetts justices appear to think they’re being broad-minded and innovative because they’re not following the most hot-off-the-press statements from the latest majority at the U.S. Supreme Court. In fact they’re just doing the bare minimum beyond that.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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