“Red Sox Spirit” and Constitutional Theory

In the course of a post criticizing the Hawaii Supreme Court’s recent “Aloha Spirit” decision interpreting the Hawaii state constitution, co-blogger Josh Blackman suggests that “Red Sox Spirit” might be relevant to interpreting the Massachusetts constitution. It’s surprising that it took a New York fan like Josh to see it. But Red Sox Spirit is indeed relevant! Even though I myself didn’t see it, previously, despite growing up in Massachusetts.

Red Sox Spirit is all about protecting liberty and resisting tyranny, especially that of the self-proclaimed Evil Empire of Baseball. David “Big Papi” Ortiz – the greatest-ever exponent of Red Sox Spirit summarized it best: “This is our f-ing city and nobody gonna dictate our freedom”:

Under the “history and tradition” approach to constitutional interpretation applied by the US Supreme Court in the 2022 Bruen Second Amendment case, the Massachusetts Constitution should be interpreted in accordance with that principle!

Resisting tyranny is central to the Massachusetts constitutional tradition, at its best. The American Revolution began in Massachusetts, in response to British imperial tyranny, and its many violations of liberty and property rights. A few years later, in 1783, Massachusetts became the first state to use its constitution to abolish slavery, when the state supreme court held that it violated the constitutional provision mandating that all men are “free and equal” (Vermont had abolished slavery in 1777, but it was not yet a state at the time).

Today, the state would do well to apply the Red Sox Spirit of constitutional law to curb rent control and exclusionary zoning, which threaten constitutional property rights, and create housing shortages that make it impossible for many to enjoy the liberty the state offers. And, as Josh suggests in his post, protection of the right to bear arms is also central to Red Sox Spirit. After all, the Revolution began because the British sought to confiscate arms kept by the Lexington and Concord minutemen, and those privately owned weapons enabled the people to effectively resist the British and eventually defeat them.

The proper application of Red Spirit to state constitutional law isn’t always clear. But, when it doubt, ask what Big Papi would do! And then strike another blow for freedom.

On a slightly more serious note, I think “history and tradition” is a badly flawed approach to interpreting the federal Constitution. Conventional “original meaning” originalism is generally better. But what is best for federal constitutional isn’t always the right approach for state constitutions. State courts might be justified in using different interpretive methods than federal courts. And, as jurists ranging from liberal Supreme Court Justice William Brennan to prominent conservative Judge Jeffrey Sutton have argued, states often can and should use their constitutions to protect rights more broadly than the Supreme Court’s interpretation of the federal Constitution. For example, many did that in response to the Supreme Court’s badly flawed property rights ruling in Kelo v. City of New London (2005). Josh’s invocation of Red Sox Spirit is on the right track, there!

I also agree with Josh that the meaning of “invasion” in the federal Constitution is justiciable. For more, see my article on that subject, where I explain why enforcing the correct definition (a military attack, not illegal migration or drug smuggling) is crucial to protecting the separation of powers and preventing both state and federal governments from abusing civil liberties.

Finally, I think Josh is right that the Guarantee Clause, which guarantees a “republican form of government” to each state, is justiciable, and should not be considered a nonjusticiable “political question.”  The political question doctrine is generally a mess. And there is no good reason to think courts are somehow less capable of determining what a republican government is than they are of interpreting any number of other somewhat imprecise provisions of the Constitution, such as the Necessary and Proper Clause, or the Fourth Amendment’s requirement that searches must be “reasonable.”

Unlike Josh, I am skeptical that Hawaii’s gun control policies violate that Clause. The original meaning of the Guarantee Clause probably imposes only fairly minimal requirements, perhaps not much more than that the legislative and executive branches be controlled by elected officials, and that there be no hereditary monarchy and aristocracy. After all, most in the Founding era apparently thought slavery and an extremely limited franchise were compatible with the Clause. Some Hawaii gun restrictions do violate the Second Amendment, however, including those recently invalidated by the Supreme Court.

And it may be that federal armed coercion of states – like that recently undertaken in Minnesota during “Operation Metro Surge” – is also incompatible with the Guarantee Clause. If anything undermines republican government, it’s usurpation of state authority at literal gunpoint. But maybe we don’t need to rely on the Guarantee Clause here, given that the same result can be reached under the currently justiciable Tenth Amendment.

In sum, Josh may be onto something with the “Red Sox Spirit”!