What were the most significant differences between the Massachusetts Constitution and the other state constitutions?

"The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic" — so begins the preamble to the Constitution of the Commonwealth of Massachusetts.

"It’s actually a bit of poetry in places," said renowned civil liberties lawyer Harvey Silverglate. "It’s a marvelous document. It is the leading charter for liberty in the Western Hemisphere and the oldest."

Silverglate is an unabashed admirer of the Massachusetts state constitution. Written mainly by John Adams, it was adopted by a majority vote of delegates from each Massachusetts town on June 15, 1780.

"Massachusetts' constitution is older than the U.S. Constitution, the Declaration of Rights older than the Bill of Rights," Silverglate said. "Both of them were something of a model for the federal constitution."

As you’d expect, there are quite a few similarities, between the Massachusetts Constitution and the U.S. Constitution, including three branches and a bicameral legislature. But there are also some significant differences, says Silverglate. Exhibit one: the Declaration of the Rights.

"Most people don’t realize that the Massachusetts Constitution has a Declaration of Rights that is broader, and more efficacious, and less limited than the Bill of Rights of the U.S. constitution," Silverglate said. "And that these provisions can be called upon to provide rights beyond anything that a federal court can or will enforce."

Consider the story of Elizabeth Freeman, an illiterate slave from Western Massachusetts. At a 1780 public reading of the new state constitution, a phrase from the Declaration of Rights caught her ear: "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."

Freeman reasoned that by law, she should be free. The Court of Common Pleas agreed. The following year the Supreme Judicial Court cited her case as precedent in another slave case, effectively ending slavery in the Bay State. The SJC’s role as laid out in the constitution is exhibit two, says Silverglate, the other critical difference between the U.S. and Massachusetts constitutions.

"The Supreme Judicial Court sees its role more broadly than the U.S. Supreme Court sees its role in the federal system," Silverglate said. "The U.S. Supreme Court is always talking about the limitations on its authority, where as the Supreme Judicial Court has supervisory powers."

Silverglate says that as a court of general superintendence, the SJC has the mandate to protect, and a long tradition of protecting, the broad rights laid out in the state constitution.

"So this is a court that has a great deal of flexibility and exercises that flexibility," Silverglate said. "You hear the words a lot from the Supreme Judicial Court: 'We make this decision in the interest of justice.' You never hear that from the Supreme Court."

And not just in the distant past. In 2003, when Goodrich v. The Board of Public Health came before the SJC, the court decided that same-sex couples had the right to marry here in the Bay State — because it was in the interest of justice as defined by the state constitution.

"Justice [Margaret] Marshall and her cohorts who decided Goodrich were smart enough to base the opinion on the Massachusetts state Declaration of Rights," Silverglate said.

The section the decision was based on? Article I of the Declaration of Rights. The same passage that earned Freeman her freedom two centuries earlier.

The Massachusetts State Constitution — the first to be adopted by Constitutional Convention, and the oldest still-operating document of its kind in the world, was voted on and passed in Cambridge 235 years ago this week.

If you have a tale of forgotten Massachusetts history to share, or there's something you're just plain curious about, email us at . We might just look into it for you.

It was in June, way back in 1780, that the Commonwealth of Massachusetts officially ratified its state constitution. The document took John Adams—yes that John Adams—about a month to write, and has lasted 236 years and counting. To mark the anniversary, here are four things worth noting about a document civil rights attorney Harvey Silverglate calls "the grandaddy of constitutions."

I. A First Of Its Kind 
In the years following the Declaration of Independence, 11 of the 13 original states established new constitutions. Ten of them were passed by their current legislatures. Not Massachusetts—here, each town elected representatives to form a body whose only task was to create a constitution. That had never been done before.

"They invented a two-step process by which they could elevate their constitution above the status of ordinary legislation so that it would have a status of higher law, it would be a fundamental constitution, said Clemson University Professor C. Bradley Thompson, author of "John Adams and the Spirit of Liberty."

The task of actually writing it fell to John Adams, who laid out a new system of government that drew on everything from British tradition to the ancient Greeks.

"It’s really the first state constitution to clearly delineate a separation of powers: legislative, executive and judicial," Thompson said.

Later in the decade, both the process of a constitutional convention and the three-branch system would be critical in the creation of the U.S. Constitution.

II. The Declaration Of Rights
It took years for the ideals of the Declaration of Independence to be incorporated into the federal Constitution. Even the Bill of Rights wasn’t adopted until after the fact. But Massachusetts’s constitution begins with a list of our fundamental rights, and there’s 30 of them, not just 10.

"The state constitution the state declaration of rights has the better language, broader language, more secure establishment of these right," Silverglate said.

The impact of this broader language was immediate and have been long lasting. Just three years after ratification, the Supreme Judicial Court declared slavery unconstitutional. Two hundred twenty-one years later, Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall would cite the same declaration of rights as the basis for court’s decision to legalize gay marriage in the Bay State.  

"It is absolutely no surprise it came first to Massachusetts because liberty has been more important in Massachusetts," Silverglate noted. "Liberty is treated more broadly and more seriously."

III. The Gritty Details Do Matter
Much of the language in our state document also appears in the federal Constitution, but there are plenty of subtle differences—and they matter. For example, on the federal level you can’t be subjected to cruel and unusual punishment; in Massachusetts you can’t be subjected to cruel or unusual punishment.

"This sounds like a lawyer's word game, right?" SIlverglate said. "But it isn’t. It’s actually very important."

The result of that little “or” is that here in Massachusetts, over the years, a broader scope of punishments have been outlawed.

"Unlike the U.S. Supreme Court, the Supreme Judicial Court declared the death penalty unconstitutional under the Massachusetts constitution," Silverglate said. 

IV. A Commitment To Education
Stonehill College Professor Peter Ubertaccio admires plenty about Adams’s document, but perhaps his favorite part is one of its quirkiest, and most unique: Part The Second, Chapter V.

"It very specifically tells the legislature that it is its duty to cherish our interests in literature, in the sciences," Ubertaccio said. "It talks about public schools, grammar schools in our towns."

Ubertaccio noted that the passage also goes on to eloquently explain why education is crucial to a functioning democracy.

"It talks about why an educated citizenry is important for not only the protection of our rights and liberties but for the general public good and creating a benevolent society, said Ubertaccio. 

All three men say there is plenty more to marvel at about Massachusetts's Constitution. Thompson sums it up simply by saying, with all due respect to James Madison and Thomas Jefferson ...

"In my view, without question, John Adams was the greatest Constitutional architect both in theory and in practice in the United States, and I’d certainly like to see him get a little more credit," he said.

Today, the Constitution of the Commonwealth of Massachusetts is the oldest still-functioning written constitution in the world. Not bad for a month's work.

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