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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 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. 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 barred racial discrimination in the use of peremptory challenges to prospective jurors well before the Supreme Court did so in Batson v. Kentucky. . .
For more information about Chief Justice Wilkins’s Donahue Lecture (which served as the basis for this article) as well as photos and audio from the event, please click here.
This issue of the Suffolk University Law Review acknowledges, and celebrates, the 230th anniversary of the Massachusetts Constitution of 1780. It is appropriate to do so.
Not so long ago, state constitutions were considered static documents, principally intended to structure the branches of state government and define their authority. Where the constitutions provided guarantees for basic citizens’ rights, the guarantees were considered to be limitations on the power of government. Many other rights afforded citizens in state constitutions were taken to be aspirational, subject to implementation as matter of policy by the executive and the legislature, but not as independent sources of duties that were enforceable against the executive and the legislature in the courts.
It was also thought that, when the United States Supreme Court established the federal rule on basic guarantees set forth in the Bill of Rights to the United States Constitution, particularly in the areas of the Fourth and Fifth Amendments, state supreme courts should adopt the federal rule under cognate provisions of their state constitutions. This analysis could be colloquially styled the “lock-step” school of interpretation. . . .
Over forty years’ worth of popular culture has led most Americans to believe that they have a “right to an attorney” upon arrest. We have watched this familiar scene unfold in countless movies and television shows: the police close in on the lone (and undoubtedly guilty) suspect, pin him against a wall, slap on the cuffs, and triumphantly recite his “Miranda warnings,” which apparently include the right to counsel. Technically, officers here are referring to a suspect’s limited Fifth Amendment right, upon “clearly” and “unambiguously” invoking it, to the presence of an attorney before custodial interrogation by the police. This idea would probably strike most people as extremely sensible—that, upon arrest, you should have the opportunity to speak with a lawyer even if you cannot afford to hire one. However, the “right” guarantees neither access to a lawyer to explain the procedural complexities of a criminal case, nor unbiased, professional advice on whether it is prudent to waive any constitutional protections. Rather, Miranda only guarantees the right, once affirmatively invoked, to not be asked questions by the police outside the presence of an attorney. As a practical reality in Massachusetts, that opportunity rarely ripens until after an arrestee is transported to court and a lawyer is appointed to represent him. . .
This article argues that even if states ought to defer to the Supreme Court concerning the meaning of cognate constitutional provisions, such deference is not required in considering the reach of prophylactic rules. Such rules, while constitutional in status, are not vessels of constitutional meaning. Rather, they are a pragmatic means to implement more open-ended constitutional norms and thus, by design, are adjustable where necessary to improve their fitness for that task. The Supreme Court makes such adjustments, and there is no reason why states should not also be able to do so where local conditions suggest the need for a more protective rule. A state’s expansion of a prophylactic rule leaves untouched the meaning of the underlying federal principle, along with the Supreme Court’s prerogative to decide what that meaning is. This article analyzes such rule expansions under Massachusetts law to develop this point concretely. . .