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Boston Bar Journal

The Massachusetts Origins of “A Government of Laws and Not of Men”: The Separation of Powers Debate, Article 30, and K.J. v. Superintendent of Bridgewater State Hospital

April 26, 2023
| Spring 2023 Vol. 67 #2

By Liam Edward Cronan

The Supreme Judicial Court’s majority and dissenting opinions in K.J. v. Superintendent of Bridgewater State Hospital, 488 Mass. 362 (2021) highlight a tension in interpreting Article 30 of the Massachusetts Constitution and underscore the jurisprudential value of separation of powers more broadly. In K.J., the Supreme Judicial Court (“SJC”) held that the “commissioner’s certification” provision under G.L. c. 123 § 18(a) which allowed the commissioner of the Department of Correction to decide that a prisoner committed to a Department of Mental Health facility by a judge should instead be held at the more secure setting of Bridgewater State Hospital, violated the principle of separation of powers in Article 30. Id. at 376. (Gaziano, J. dissenting). The majority so held, notwithstanding the fact that “this arrangement, [was] adopted by the Legislature more than fifty years ago as part of a comprehensive reform of the Commonwealth’s mental health system.” Id. Cases like K.J. reveal that Article 30 stands among the most legally and historically significant aspects of the Massachusetts Constitution. As a prime example recognizing the importance of the separation of powers, Justice Antonin Scalia’s dissent in Morrison v. Olson, 487 U.S. 654 (1988) notes that “it is the proud boast of our democracy that we have ‘a government of laws and not of men,’” yet he states “not many know” its origins. Id. at 697 (quoting Mass. Const. art. 30). Those familiar with Massachusetts law are not so unaware: this oft-cited quote from Article 30, drafted by John Adams, represents a legal concept with an immense historical foundation that still generates vigorous debate among justices on the SJC.

Article 30

Article 30 states “[i]n the government of the 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.” Mass. Const. art. 30. As the SJC has emphasized, “Massachusetts is one of only a few [s]tates to articulate an explicit separation of powers,” an articulation that is “more explicit than the [f]ederal Constitution” and compels “scrupulous observance.” See Commonwealth v. Cole, 468 Mass. 294, 301 (2014). Such limitations remain a time-honored feature of Massachusetts law. See Walton Lunch Co. v. Kearney, 236 Mass. 310, 315 (1920).

More recently, applications of Article 30 continue to reflect the important relationship between the executive and judicial branches, especially in criminal matters. See, e.g., Commonwealth v. Rosa, 491 Mass. 369, 370, 376 (2023) (overruling trial court order that required the prosecution to seek court approval before refiling charges as a violation of Article 30, holding that it “constituted an unwarranted intrusion upon the powers granted exclusively to the executive branch under art. 30”); Commonwealth v. Rossetti, 489 Mass. 589, 609 (2022) (holding that the court’s interpretation of statute mandating imprisonment in State prison for not more than five years where a sex offender convicted of a second offense for failing to register as a sex offender, nonetheless permitted a term of probation, was not a violation of Article 30); see also, e.g., Commonwealth v. Newton N., 478 Mass. 747, 755-56 (2018). Perhaps most notable among recent decisions is the dispute between the majority and the dissent in K.J. concerning the meaning, application, and standard governing Article 30 challenges. 488 Mass. at 366, 376. This article does not endeavor to question the validity of the majority or dissent; rather, it highlights the important effects, history, and current relevance of Article 30.

K.J. v. Superintendent

Section 18(a), the statute at issue in K.J., permitted the Commissioner of the Department of Correction to determine whether a prisoner committed to a Department of Mental Health (“DMH”) facility by a judge should instead be held in a more secure setting to assure the prisoner’s “retention in custody.” Id. at 362-63. After a hearing on a petition to recommit K.J., a pretrial detainee charged with, among other things, armed assault with intent to murder, the trial judge determined that K.J. was mentally ill and posed a likelihood of serious harm if not confined. Id. at 363-64. The court also found that K.J. did not require strict custody and issued an order committing him to a DMH facility. Id. at 363. Despite this order, the Commissioner used § 18(a)’s certification provision to hold K.J. in custody at Bridgewater. Id.  K.J. filed a petition to the SJC, seeking release from Bridgewater and enforcement of the trial court’s order.  A single justice reported the case to the full court. Id. at 365.

In evaluating whether §18(a) violated Article 30, the majority examined Article 30 and the tension between the necessity of maintaining “scrupulous observance” to the principle of separation of powers while at the same time exhibiting flexibility in “not requir[ing] three ‘watertight compartments’ within the government.” Id. at 363-64, 369. The majority held that, because this “flexibility reaches its breaking point” when the legislative branch enacts a statute that would permit the executive branch to “essentially overrule a court order,” § 18(a) violates Article 30.  Id. at 366-69. The SJC thus declared that aspect of § 18(a) unconstitutional.

Conversely, the dissent reasoned that, because the “constitutionality of a statute should be sustained in absence of evidence clearly to the contrary” and because Article 30 does not require the three branches to be “watertight compartments,” it was permissible that § 18(a) “anticipates leaving room for possible further action by the executive branch in a traditional area of executive concern.” Id. at 376. The dissent further maintained that the majority changed the “critical inquiry” in Article 30 challenges from asking whether the legislative provision “allows one branch to interfere with the functions of another” to a broader inquiry concerning “whether an executive action can in any way be read as conflicting with a judicial order.” Id. at 377. Adopting a narrower approach, the dissent concluded that, because it is possible to read §18(a) to avoid unconstitutionality, the majority erred. Id. at 378.

Rossetti, similarly, reveals the ongoing debate among the justices regarding the meaning and application of Article 30. Although the Chief Justice concurred in the majority’s holding that the minimum mandatory statute requiring imprisonment for five years precluded the trial court from ordering a shorter term of imprisonment, the Chief Justice stated that the majority’s holding that a term of probation was permissible “may violate Article 30.” Id. at 621.

The Relevance of Article 30’s Long History

John Adams, the principal drafter of the Massachusetts Constitution, derived the language and the purpose behind Article 30 from at least centuries of jurisprudence and political theory. Even a rudimentary understanding of these historical underpinnings reveals the broader purpose of this provision and provides context to modern interpretations of Article 30, including a means of understanding the tension between the majority and dissenting opinions in K.J.  For Adams, a government “of laws and not of men” —the stated purpose of the explicit separation of powers in Article 30—was the very definition of a republic. See John Adams, Novanglus Letter No. VII, in The Revolutionary Writings of John Adams (C. Bradley Thompson ed., 2000). The most cited “origin” of this phrase is Montesquieu’s Spirit of the Laws. Baron de Montesquieu, The Spirit of the Laws 153-54 (Thomas Nugent trans., Hafner Publishing Co. 1949) (1748). While Adams’s letters before 1780 attest to his having read Montesquieu, the roots of this branch of constitutional law—and Adams’ understanding of it—extend far deeper. See, e.g., John Adams, To John Penn, 27 March 1776, Founders Online, Nat’l Archives.

The earliest traces of the legal concepts found within Article 30 draws inspiration from works of ancient philosophy and history. Adams relied on, among others, the writings of Aristotle, Cicero, and Livy in formulating a grounded understanding of the republican system of government—a system devoid of “arbitrary government” and instead one governed by laws with “regard [for] the common interest” and by checks and balances among ruling branches. 1 Livy, History of Rome 127 (George Baker, trans., Derby & Jackson 1858); Aristotle, Politics 114 (Benjamin Jowett trans., Cosimo Books 2008). It is here where Adams’ classical education comes through most clearly. See e.g., 1 John Adams, A Defence of the Constitutions of the Government of the United States, ii-iii, xix-xxiii (1794) (referencing among others Tacitus and Cicero).

Article 30 likewise follows from the English republican political theorists from the age of the English Civil War and Restoration. In 1656, James Harrington, an English political philosopher and a name Adams invoked when he first expounded his idea behind Article 30, defined a “commonwealth” as “an empire of laws and not of men.” James Harrington, The Oceana and Other Works 593-96 (1656) (referencing Aristotle); John Adams, To the Inhabitants of the Colony of Massachusetts-Bay, 27 February 1775, Founders Online, Nat’l Archives. In 1683, Algernon Sidney, another English political philosopher, similarly maintained that, in a republic, “[j]ustice . . . ought to be deducted” rather than derived “from the depraved will of man.” Algernon Sidney, Discourses Concerning Government ch. 3, sec. 11 (1683); John Adams, To William Hooper, 27 March 1776, Founders Online, Nat’l Archives.

Lastly, Article 30 reflects a largely overlooked influence from the Dutch Republic, one of Europe’s few contemporary republics in the late eighteenth century and one with which Adams was notably familiar. See David McCullough, John Adams 376-77 (2001). In the 1770s, Adams successfully obtained loans from Amsterdam bankers to fund the American Revolution and later opined that “in freedom and . . . liberty of conscience” the Dutch Republic “resemble[d the United States] more than any other.” John Adams, Memorial to Their High Mightinesses, The States-General of The United Provinces of the Low Countries, in 7 The Works of John Adams 396, 399, 400 (Charles Francis Adams ed., 1852) (1781). Adams also cited the gradual decline of the Dutch Republic into a hereditary monarchy in the very same sources in which he theorized about a “government of laws and not men” as a warning of which to take heed. See, e.g., John Adams, Thoughts on Government, April 1776, Founders Online, Nat’l Archives.


Ultimately, Adams’ ideal of “a government of laws and not men” reveals an intellectual history relevant to ongoing discussions over the purpose, meaning, and application of Article 30. Courts and litigants alike have considered Article 30 in the realm of criminal law and in many instances that a party may view as implicating traditional principles of “divided” government. See generally James Madison, The Federalist No. 48, 51 (1787) (separation of powers as a protection against one branch encroaching upon another, which is “essential to a free government”).

Today the application of Article 30 remains a recurring motif in the Appeals Court and the SJC dockets. In addition to cases involving substantive criminal law noted above, they involve matters such as: (1)  interpretations of the Massachusetts Rules of Criminal Procedure, Commonwealth v. Moore, 93 Mass.App.Ct. 73, 74-75 (2018) (affirming a judge’s discretion on matters of interpreting the Massachusetts Rules of Criminal Procedure under Article 30); (2) emergency orders under the Civil Defense Act, Desrosiers v. Governor, 486 Mass. 369, 382 (2020) (concluding that authority granted to the governor to issue emergency orders under the Civil Defense Act does not violate Article 30); (3) the Whistleblower Act and sex offender registry, Edwards v. Commonwealth, 488 Mass. 555, 567 (2021) (Whistleblower Act may be invoked by the Chair of Sex Offender Registry Board when Chair dismissed by the governor without violating separation of powers under Article 30); and (4) policy issues, Moran v. Benson, 100 Mass.App.Ct. 744, 749 (2022) (Article 30 prohibits a court from imposing its own policy preferences even where a possibly meritorious claim will go unredressed by operation of a statute of repose). In short, the vigorous debate in K.J. is just one of the most recent concerning those few powerful words and, by implication, their storied history.

Liam Cronan is a third-year JD/MA in History candidate at Boston University. After graduation, he will clerk for the Vermont Supreme Court and then the U.S. District Court for the District of Massachusetts.