Dacier’s Take on. . . The MA Constitution, An Independent Judiciary, and Civil Discourse

If you’ve been spending too much time on Amazon.com you may have missed the greatest bargain to be had in Massachusetts.  Available free-of-charge at the State House Bookstore is The Constitution of the Commonwealth of Massachusetts in hard copy.

At the risk of sounding like your high school civics teacher, I’m going to urge you to read this magnificent document that provides us with three separate, co-equal branches of government, and guarantees us an independent judicial branch. You may even want to take a moment to thank John Adams for his work as a dedicated volunteer, drafting the Massachusetts Constitution in less than one month. He’s also the lawyer who founded the organization to which the Boston Bar Association traces its roots and the second president of the United States.

Some context may help. Think back to September of 1779, a time in American life when there were more pressing matters than purchasing back to school clothing and supplies. Both Massachusetts and our nation were on the brink of bankruptcy.

We needed a constitution to establish a framework for governing our state. At the same time we feared anything smacking of the British monarchy. Our founders had grown increasingly frustrated with judges whose rulings reflected loyalty to the king rather than loyalty to any established principles of impartially rendered justice.

By June 1780, the Massachusetts Constitution was ratified by a convention. According to David McCollough, this constitution was one of Adams’ great achievements in life. And the greatest aspect of this constitution was that it established an independent judiciary with judges appointed, not elected, for life. Judges were to uphold the Constitution and to deter any overreaching by the Governor or the Legislature.

Even without the word processing and redline function we take for granted today, this did not deter convention delegates from making a few changes to Adams’ draft. According to McCollough, he wasn’t happy to see his reference to all men being “born equally free and independent” changed to all men being “born free and equal.” Similarly Adams, an ardent proponent of a powerful executive elected by the populace, disliked the fact that the legislature was ultimately given the right to override the governor’s veto.

But rather than bicker about words, Adams and others compromised for the sake of a greater good, a sound framework for governing Massachusetts. What’s remarkable is that 233 years later, the Massachusetts Constitution still enables us to live as a state of laws, not of men.

Still I’m troubled by the apparent, willful ignorance of the role and the stature of the judiciary in ensuring “an impartial interpretation of the laws, and administration of justice.”  We have considerable judicial talent and sound court management. But the courts need the resources to ensure that the rights guaranteed by our constitution are not at risk.

What’s more, the dialogue between those of divergent viewpoints on any variety of issues affecting how our state is governed and how our spending priorities are determined has gotten so shrill that we have come to tolerate that which is unacceptable – gridlock. Have we gotten so entangled in minutiae and redlining that we’ve forgotten the big picture or whatever it was we hoped to accomplish in the first place?

Fortunately, here in Massachusetts the spirit of compromise prevailed enough to provide our state court judges with a long overdue pay raise, the first installment of which will go into effect in January. Still years of underfunding have left our judicial branch in catch up mode.

How about we return to the type of civil discourse that made passage of the Massachusetts Constitution possible? Could we start by trying to identify principles we can embrace rather than bickering ad infinitem? Civil discourse can be time consuming as we reach out to constituents who may not share our views and vice versa. But the alternative is gridlock, and that is not what democracy is all about.”

To view the newly launched BBA blog, Dacier's Take, click here