The Oldest State Court Makes a Case for Embracing Change

The Massachusetts Constitution, drafted by John Adams in 1780, is the oldest functioning written constitution in the world today. If its language were construed literally, frozen in the 18th century, the document certainly would prove obsolete, written as it was long before the civil rights movement, the women’s rights movement, the gay rights movement, the disability rights movement, and . . . the list goes on. But in a recent decision, the Massachusetts Supreme Judicial Court — the oldest appellate court in the Western Hemisphere — rejected a narrow, tradition-bound approach to state constitutional interpretation and instead embraced an approach that takes into account evolving norms of equality. In doing so, the state court explicitly departed from the analysis in the U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, which cited history and tradition as the basis for rejecting the fundamental right to abortion.

In the Massachusetts case, Kligler v. Attorney General, the court considered whether the state’s constitution provides a right to physician-assisted suicide as a matter of substantive due process, which prohibits government actions that “unduly interfere” with fundamental rights. Physician-assisted suicide is a statutory crime in Massachusetts. But the plaintiffs, a patient who was diagnosed with incurable cancer and his doctor, contended that terminally ill patients had a fundamental right “to receive a prescription for lethal medication in order to bring about death at a time and in a manner of their choosing.”

The U.S. Supreme Court addressed the issue of physician-assisted suicide in the 1997 case of Washington v. Glucksberg. There, the Court concluded that there was no fundamental right to such a procedure under the federal Constitution because there was insufficient evidence of a “history and tradition” of the practice in the United States.        

The Massachusetts high court could have simply followed the Supreme Court’s lead and rejected the plaintiffs’ claims on the ground that absent a recognized tradition, there was no fundamental right to assisted suicide. Instead, the state court adopted a more nuanced approach. It reviewed recent U.S. Supreme Court case law on fundamental rights and identified two strands of analysis: a “narrow” approach that begins and ends with an evaluation of history and tradition (the Dobbs decision is an example), and a “comprehensive approach” that takes a broader look at evolving norms and equality concerns — the approach previously adopted by the Supreme Court when, for example, it struck down statutes criminalizing same-sex sodomy in Lawrence v. Texas.

Both the “narrow” and “comprehensive” approaches start with an examination of history and tradition. And if equality concerns are not at issue, the Massachusetts court stated, the analysis can end there. But the court opined that when equality interests are involved, “the right at issue may be stated at a higher level of generalization,” thus opening the analysis to include more modern understandings of rights. Applying this approach to same-sex sodomy, for example, a court would look at whether there is a history and tradition of recognizing and protecting intimate relationships, not whether same-sex sodomy was specifically contemplated by the Constitution’s drafters or previously protected by statute.

The Massachusetts court noted that the U.S. Supreme Court seemed to have abandoned the comprehensive approach when it decided Dobbs, but it emphasized that this development need not constrain state courts. Instead, the court concluded that under the Massachusetts Constitution, history does not act as a straitjacket to preclude expanded protections for previously marginalized groups, such as women or minorities.

In Kligler, the Massachusetts court ultimately determined that physician-assisted suicide did not implicate any equality concerns, so it therefore did not demand an analysis under a higher level of generality. But in citing the dissenting opinion in Dobbs, the court intimated that there was ample evidence that inequalities do underlie restrictions on abortion access and that a higher level of generality — as applied in Lawrence v. Texas — would be appropriate in Massachusetts if abortion were at issue. The right to abortion is already recognized in Massachusetts in both case law and statute, but the high court made it a point to strongly suggest that the Dobbs decision would not alter that conclusion.

The Kligler decision is significant in its own right, but it is also notable because the current Massachusetts Supreme Judicial Court is composed entirely of judges nominated by former Massachusetts Gov. Charlie Baker, a Republican. At least by Massachusetts’s standards, this is not a liberal court. Yet all the sitting judges agreed that the U.S. Supreme Court took the wrong path when it purported to tie fundamental rights so tightly to history and tradition. As the judges concluded in Kligler, “[b]y phrasing the right more broadly, and considering modern precedent alongside history, we are able to cleanse our [fundamental rights] analysis of the bigotry that too often haunts our history, and to ensure that those who were denied rights in the past due to outmoded prejudices are not denied those rights in the future.”

Martha F. Davis is a university distinguished professor at Northeastern University School of Law.