The Massachusetts Constitution
and an Independent Judiciary
Barbara F. Berenson
July 18, 2011
The MA Const of 1780
• Preamble
• Declaration of Rights
– Review Articles 1, 29 and 30
• Frame of Government
PART THE FIRST
A Declaration of the Rights of the Inhabitants of
the Commonwealth of Massachusetts.
• Article I. All men 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.
• Art. XXX. In the government of this
commonwealth, the legislative department
shall never exercise the executive and
judicial powers, or either of them; the
executive shall never exercise the
legislative and judicial powers, or either of
them; the judicial shall never exercise the
legislative and executive powers, or either
of them; to the end it may be a
government of laws, and not of men.
• Art. XXIX. It is essential to the preservation of the rights
of every individual, his life, liberty, property, and
character, that there be an impartial interpretation of the
laws, and administration of justice. It is the right of every
citizen to be tried by judges as free, impartial, and
independent as the lot of humanity will admit. It is,
therefore, not only the best policy, but for the security of
the rights of the people, and of every citizen, tht the
judges of the supreme judicial court should hold their
offices as long as they behave themselves well, and that
they should have honorable salaries ascertained and
established by standing laws.
Why an Independent Judiciary
• Thoughts on Government, 1776
• Philosophical Antecedents:
– Britain: three divisions of power, but King, House of
Lords, House of Commons
– Montesquieu: executive, legislative, judicial, but
judicial power identified with juries (temporary juries).
But important analytical development
• Adams’s Personal Experience
– Boston Massacre
– Courts Accountable to King and Royal Governor
• Crown’s control over judicial salaries threatened judicial
independence
Relationship between Judicial
Indepedence and Judicial Review
• Only independent judges can safely
invalidate an act of a political branch
The Development of Judicial
Review
• Federalist # 78
• Marbury v. Madison (1803)
– John Marshall in 1788, at VA Ratifying Convention:
“Has the government of the United States power to
make laws on every subject? . . . Can they go
beyond the delegated powers? If they were to make
a law not warranted by any of the powers
enumerated, it would be considered by the judges as
an infringement of the Constitution . . .They would
declare it void.”
The Concept of Rights
• James Otis: The Writs of Assistance
– Paxton’s Case, 1761. “An act against the
constitution is void.” Otis lost case (legislative
supremacy), but “the child independence was
born.”
• Mum Bett and Quock Walker Cases
Bayard v. Singleton, N.C. 1787
• Statute: no jury trial for person seeking to
recover title to confiscated property
(confiscated from loyalists)
• Court: statute unconstitutional
• Legislature may not take away right to trial
by jury guaranteed by the constitution
Kamper v. Hawkins, 1793 (VA)
• Statute conferred district court judges
power to issue injunctions. Statute
unconstitutional
• Opinion of Judge John Tyler
Why is Judicial Review Necessary
to Protect Rights
• Of Individuals
• Of Minority Groups
Someone needs the final word
• “Such power in judges is dangerous; but
unless it somewhere exists, the time
employed in framing a bill of rights and
form of government was merely thrown
away.” Governor Morris of PA, 1785.
Limits of Role of Judiciary
• Practical: need popular support
– Relationship of independence and
accountability
• Precedent
• Respect for other branches of government
– (J Breyer: guns, video games)
Elected Judges vs.
Appointed Judges
Overview of Methods of
Constitutional Interpretation
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Textualism
Original intent/history
Fundamental Principles
Living Document
icivics
• www.icivics.org