The Massachusetts Constitution: the Oldest in the United States, and Often Ahead of its Time

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

The Massachusetts Constitution is the oldest written constitution in the world still in active use. After an earlier constitution failed to secure sufficient support, a constitutional convention was convened in September 1779, with a drafting subcommittee of John Adams, his second cousin Samuel Adams, and James Bowdoin. Bowdoin and Samuel Adams delegated the actual work of drafting to a subcommittee of one: John Adams. Adams completed the draft in October 1779 before sailing back to Europe on a diplomatic mission for the Continental Congress.

Several colonies had already adopted constitutions, and Adams drew on these existing models. At the same time, Adams had his own well-developed ideas regarding constitutional governance. He was particularly influenced by the writings of English philosopher John Locke, a proponent of natural rights, and Montesquieu, the French judge and political theorist who coined the phrase “trias politica,” or separation of powers. Adams also reacted against the proposal for a unicameral legislature set out in Thomas Paine’s popular pamphlet Common Sense. Adams believed a bicameral legislature was necessary to avoid domination by self-interested individuals.

Adams’s draft proposed three branches of government: an executive, an independent judiciary, and a bicameral legislature (in Massachusetts, the state legislature is known as the General Court). It also included an extensive bill of rights — prominently positioned as the constitution’s first substantive section — and a provision which committed the Massachusetts government to spread “the advantages and opportunities of education” as a necessary component of democracy. This latter provision was purportedly Adams’s favorite.

The new constitution was submitted for approval by popular vote, another Adams innovation, and was adopted in 1780 by a two-thirds majority of the eligible voters. In many respects, the Massachusetts constitution was the model for the U.S. Constitution of 1787, which John Adams also enthusiastically endorsed.

Yet even a thinker as enlightened and widely read as Adams had his limits. In 1776, Abigail Adams famously urged her husband to “remember the ladies” as he considered new governing frameworks for the Massachusetts colony and emerging federal government. Neither the original Massachusetts constitution nor the 1787 U.S. Constitution give any indication that he considered her pleas. It was about 190 years later, in 1976, that the Massachusetts Declaration of Rights was amended to recognize the inherent rights of “all people” rather than “all men,” and to specifically establish a right to “equality of the law” regardless of sex.

Declaration of Rights

Massachusetts’s Declaration of Rights (as its bill of rights is called) is extensive, encompassing 30 articles, many of which are echoed in the federal Constitution. For example, the Massachusetts declaration includes provisions protecting free speech, freedom of religion, criminal procedure rights such as the right to speedy trial and to confront witnesses, and the right to be secure from unreasonable searches and seizures. However, the Massachusetts declaration at times provides more specificity than the federal Constitution. For instance, the Massachusetts Constitution provides an explicit right to vote, outlines the power of judicial review, and sets out a specific provision on the separation of powers, a framework which is only suggested by the structure of the federal Constitution. In addition, even when the Massachusetts declaration’s provisions are similar to their federal counterparts, they sometimes include distinctive wording with potential legal significance.

The state’s Declaration of Rights begins with the statement that “all people are born free and equal and have certain natural, essential and unalienable rights,” including liberty rights, rights to acquire and protect property, and rights to seek and obtain safety and happiness. The federal Constitution has no counterpart to this provision, which is instead reminiscent of the aspirational language of the U.S. Declaration of Independence. The Massachusetts version, a substantive constitutional guarantee derived from Locke’s views of natural rights, is similar to those found in more than 30 state constitutions. However, as written, Massachusetts’ inalienable rights provision went beyond those adopted earlier by Virginia and Delaware by indicating that these rights attach at birth — a swipe at supporters of slavery who argued that the rights were limited to free men. The 1976 addition of a state Equal Rights Amendment, recognizing a right to equality on the basis of sex, makes this provision even more distinctive.

Article XVII of the Declaration of Rights, concerning the “right to keep and bear arms,” is also notably different from the federal Constitution’s Second Amendment. Under the Massachusetts Constitution, “the people have a right to keep and to bear arms for the common defence.” The state supreme court, called the Massachusetts Supreme Judicial Court, has interpreted this provision literally and narrowly, concluding that the article does not guarantee a private right to own or possess weapons, and that reasonable regulation of arms is permitted under the state constitution.

Article XXVI of Massachusetts’s declaration bars the imposition of “cruel or unusual punishments,” a slight but potentially meaningful difference from the federal prohibition of “cruel and unusual punishment.” Despite a 1982 amendment to this article permitting imposition of the death penalty, the state’s high court effectively nullified the amendment by striking down, on fairness grounds, legislative efforts to reinstate a death penalty through statute. The “cruel or unusual punishments” provision of the Massachusetts declaration was also a critical factor when, in 2024, the Supreme Judicial Court was the first state court to go beyond federal precedent to categorically ban life without parole sentences for individuals ages 18 through 20 years old. The decision labeled this group “emerging adults.”

Unique Characteristics

Though its core provisions have remained intact since 1780, the Massachusetts Constitution has been amended more than 120 times. Environmental issues have received repeated attention. A 1918 amendment set out in Article XLIX extended the state’s police and condemnation powers. It characterized “conservation, development, and utilization of the agricultural, mineral, forest, water and other natural resources of the commonwealth” as “public uses” and required the paying of just compensation for takings. Article XLIX was annulled and replaced in 1972 to recognize the people’s rights to “clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic and esthetic qualities of their environment.” Courts in Montana and Pennsylvania have found similar state constitutional amendments from the 1970s to create private rights of action, but there has not been significant environmental rights litigation under the Massachusetts provision. Interestingly, Massachusetts’ constitution is alone in the nation in addressing “excessive and unnecessary noise” as an environmental issue.

A Strong Executive and Judiciary

Within the framework of the three branches of government, John Adams introduced several nuances to ensure a balance between the branches. Whereas many state constitutions give greater power to the legislature, Adams sought to strengthen the executive and the judiciary. For example, the Massachusetts Constitution expanded the authority of the governor to veto legislative enactments. This innovation was later adopted in the federal Constitution.

Importantly, since 1780, members of the state judiciary have been appointed by the governor with the advice and consent of the Executive Council, also known as the Governor’s Council. Unlike most states, Massachusetts does not have state judicial elections. Further, Adams’s constitution provided members of the Supreme Judicial Court “should hold their offices as long as they behave themselves well,” a provision that was amended in 1972 to impose mandatory retirement at age 70. Adams believed that gubernatorial selection and life tenure would best ensure judicial independence, while also increasing the judicial power vis-à-vis the other branches. The same approach was later endorsed by the federal framers when they adopted life tenure for federal judges.

Amendment Process

Adams’s original 1780 constitution made no provision for amendments. Instead, constitutional changes were considered periodically during constitutional conventions called by the state legislature. In 1918, the constitutional convention enacted Article XLVIII, which governs the amendment process.

There are three routes to amending the Massachusetts Constitution — an initiative amendment, a legislative amendment, or a convention-referred constitutional amendment — all of which require voter approval. 

An initiative amendment is citizen-initiated and begins with a petition and collection of the requisite number of signatures. Article XLVIII prohibits proposed initiative amendments that relate to religion, judges, the courts, particular localities of the Commonwealth, specific appropriations, and certain provisions of the state constitution’s Declaration of Rights. Of the states, Massachusetts sets the lowest bar for such citizen-initiated amendments, requiring amendment supporters to obtain signatures equal to just 3 percent of the votes cast in the last gubernatorial election. An initiative amendment petition must be considered during two joint sessions of the Massachusetts legislature and must be supported by 25 percent of the legislature during each of these sessions. If the proposed amendment receives enough legislative support, it is put on the next general election ballot. To be adopted, at least 30 percent of the voters who cast ballots in the election must vote in favor of the amendment, and a majority of the ballots cast on the question must also be affirmative.

The legislature may also propose a constitutional amendment. Such a proposal must receive majority approval (50 percent plus one vote) during two successive joint legislative sessions to be placed on the ballot. A constitutional convention convened by the legislature may also propose an amendment, subject to ratification by voters. A legislative amendment or an amendment initiated by constitutional convention can pass with a simple majority of voters in that election.

Judicial Interpretation

Though it shares a history and some language with the federal Constitution, Massachusetts courts have rejected the idea of following federal Supreme Court interpretations in “lockstep.” Rather, when construing the state constitution, the Supreme Judicial Court typically leads with its own analysis of the state constitution’s text and history.

Further, the court has rejected rigid historical tests for ascertaining individual rights. While history serves as a guide, the court has stated that the constitution “is to be interpreted in the light of the conditions under which it and its several parts were framed, the ends which it was designed to accomplish, the benefits which it was expected to confer, and the evils which it was hoped to remedy.” In a 2022 decision, the Supreme Judicial Court specifically noted the negative impact that narrow historical tests could have on marginalized groups that were not recognized in 1780, and indicated it would reject such an approach if it perpetuated inequalities.

Over nearly 250 years, the Massachusetts Constitution has been the basis for many important and influential cases, including three known as the Quock Walker cases. Decided between 1781 and 1783, these cases have seldom been cited as judicial precedent but have had a significant and ongoing impact on state constitutional drafting and interpretation.

Quock Walker was a 28-year-old enslaved man from Worcester County who ran away from his brutal owner, Nathaniel Jennison. Walker obtained counsel and sued Jennison to win his freedom and obtain civil damages for assault and battery. The jury found for Walker, freeing him from slavery and awarding him £50 in damages (more than $13,000 today). A second case affirmed this result.

Jennison was then indicted on a criminal charge of assault and battery. He was tried in 1783, with the Supreme Judicial Court presiding, and found guilty. Chief Justice William Cushing, who served as the trial judge, instructed the jury that slavery in the state was disallowed under the inalienable rights clause of the 1780 constitution. This resolution encouraged anti-slavery forces to press for similar language in other state constitutions across the country.

More than two centuries later, in 2003, the Supreme Judicial Court decided Goodridge v. Department of Public Health, upholding the constitutional right of same-sex couples to marry. It was the first state court to uphold the right to same-sex marriage on constitutional grounds, and it issued that ruling more than a decade before the federal Supreme Court reached the same conclusion in Obergefell v. Hodges. In reaching its decision, the Goodridge court emphasized that the “Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life.” Significantly, the court concluded that it need not apply heightened scrutiny to evaluate the claim under either due process or equal protection, since the prohibition on same-sex marriage failed even the lowest level of rational basis review. The case has been cited in dozens of subsequent cases, including by the U.S. Supreme Court.

Finally, in a series of more recent cases, the Supreme Judicial Court has demanded that the criminal law take into account the life experiences of racial minorities. In Commonwealth v. Warren, decided in 2016, the court unanimously held that flight is not per se evidence of guilt when a Black man flees police. According to Justice Geraldine Hines, who authored the court’s opinion, such a flight “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” In 2020, in Commonwealth v. Evelyn, the court extended the protection for fleeing to other “nervous or evasive behavior” when confronted by the police. On the same day, the court issued Commonwealth v. Long, eliminating the requirement that a defendant trying to prove that he was subject to an illegal racially-motivated traffic stop must produce statistical evidence showing racial bias by that officer or in that jurisdiction. That burden was too high, the court concluded, and it adopted the requirement that the defendant must simply establish “a reasonable inference” that the officer’s decision to initiate the stop was motivated by race, based on the specific circumstances surrounding the stop. 

These cases and other highlights selected here are just an introduction to the history and scope of the Massachusetts Constitution. With a constitution that has been in operation almost 250 years, that is so intertwined with our nation’s history, and that is still supporting judges in resolving today’s legal problems, there is always something new to explore.

Martha F. Davis is a university distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha Davis, The Massachusetts Constitution: the Oldest in the United States, and Often Ahead of its Time, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 18, 2025), https://statecourtreport.org/our-work/analysis-opinion/massachusetts-constitution-oldest-united-states-and-often-ahead-its-time