A Fresh Path for State Constitutional Law
During a post that took aim at Hawaii’s recent Aloha Spirit ruling interpreting its state constitution, co-blogger Josh Blackman proposed that a notion he calls “Red Sox Spirit” could illuminate how Massachusetts’ constitution ought to be read. It’s surprising that a New Yorker would spot the relevance, but the idea does hold water. Red Sox Spirit is, in fact, about guarding liberty and resisting tyranny, especially the kind imagined as the Evil Empire of Baseball. David “Big Papi” Ortiz—widely regarded as the most emblematic advocate of Red Sox Spirit—captured the essence in his unmistakable words: “This is our f-ing city and nobody gonna dictate our freedom.” When the Supreme Court’s Bruen decision in 2022 employed a history-and-tradition approach to interpreting the Second Amendment, it stands to reason that Massachusetts’ constitution should be read in light of the same principle. History and tradition form a crucial strand of the state’s fabric. The Revolution itself began in Massachusetts as a reaction to British imperial oppression and repeated violations of liberty and property. Not long after, in 1783, Massachusetts became the first state to use its constitution to strike down slavery, with the court holding that the institution violated the provision declaring all men to be free and equal (Vermont had abolished slavery earlier, but it was not yet a state at that time). In contemporary terms, the state would do well to apply Red Sox Spirit to curb rent control measures and exclusionary zoning, policies that threaten constitutional property rights and that produce housing shortages that limit many people’s ability to enjoy the liberty the state offers. And, as Josh suggests, protecting the right to keep and bear arms lies at the core of Red Sox Spirit—even if the state’s supreme court has reached a different conclusion. After all, the Revolution began when the British attempted to confiscate arms held by the Lexington and Concord minutemen, and those privately owned weapons enabled the people to resist the oppressor and ultimately prevail. The proper application of Red Sox Spirit to state constitutional law isn’t always crystal clear. But when uncertainty arises, one might ask what Big Papi would do—and then press forward to advance liberty.
A somewhat more serious note follows: the “history and tradition” method is, in the end, a flawed framework for interpreting the federal Constitution. Conventional originalism—interpreting the text according to its original public meaning—generally offers a better guide. Yet what proves optimal for federal constitutional interpretation isn’t always the right approach for state constitutions. State courts may be justified in adopting interpretive methods that differ from those used by federal courts. And as jurists across the spectrum—ranging from liberal stalwarts like William Brennan to conservative voices such as Jeffrey Sutton—have argued, states frequently can, and should, deploy their constitutions to safeguard rights more robustly than the Supreme Court’s reading of the federal Constitution. This was evident in the reaction to the Supreme Court’s flawed property-right decision in Kelo v. City of New London (2005), among other cases. Josh’s invocation of Red Sox Spirit sits on solid ground in that regard. I also share his view that the meaning of “invasion” in the federal Constitution is a justiciable question. For further discussion, see my own piece on why defining the term correctly—as a military incursion rather than as illegal migration or drug trafficking—is essential to preserving the separation of powers and preventing both state and federal governments from trampling civil liberties.
Finally, I agree with Josh that the Guarantee Clause, which guarantees a “republican form of government” to every state, is a justiciable issue and should not be left as a nonjusticiable political question. The political question doctrine is an unruly beast, and there is no compelling reason to deem courts less capable of determining what constitutes a republican government than they are at interpreting other provisions of the Constitution that are themselves somewhat imprecise, such as the Necessary and Proper Clause or the Fourth Amendment’s reasonableness standard. Unlike Josh, I remain skeptical that Hawaii’s gun-control measures violate the Guarantee Clause as such. The original meaning of the Guarantee Clause probably imposes only modest requirements—perhaps that the legislative and executive branches are elected, and that there is no hereditary monarchy or aristocracy. After all, many in the Founding era believed slavery and a very limited franchise could still be compatible with the Clause. Some Hawaii gun restrictions do conflict with the Second Amendment, including those that the Court has recently struck down. And it may be that federal armed coercion of states—such as the action taken in Minnesota during “Operation Metro Surge”—is also at odds with the Guarantee Clause. If anything undermining republican government can be traced to, it would be the literal use of force to override state authority. Yet there might be no need to hinge the argument solely on the Guarantee Clause, since the same outcome could be achieved through the presently justiciable Tenth Amendment. In any event, Josh’s thesis about the Red Sox Spirit is intriguing and worth further contemplation.
