As a member of a minority group that has been persecuted for nearly three millennia, I was raised to fear authoritarianism. Fortunately, I grew up feeling safe in America. I no longer do.
Judge Young stated in AAUP v. Rubio, No. 25-10685-WGY (D. Mass. Sept. 30, 2025), that Trump ignores “The Constitution, our civil laws, regulations, mores, customs, practices, courtesies — all of it.”
Trump’s federal agents have threatened peaceful protesters, shot and killed Renee Good, an unarmed woman, during an ICE encounter, and detained more than 170 U.S. citizens without timely due process.
Trump also granted “a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.”
This essay argues that Massachusetts should prepare proactive tools to prevent foreseeable constitutional injury, not merely sue after the harm is done.
His second term is a rupture, a discontinuity in the arc of American presidencies. We now live in extraordinary times.
This is not speculative. In 2025, the American Bar Association concluded “Our American democracy is under threat.” That assessment is echoed by constitutional scholars, conservative jurists, Supreme Court justices, and public intellectuals. The disagreement today is less about whether democratic norms are eroding than about whether our institutions can stop that erosion in time.
Massachusetts is not powerless in this authoritarian moment.
The Massachusetts Supreme Judicial Court has long affirmed that the Massachusetts Constitution provides stronger protections than the U.S. Constitution, including safeguards for privacy, liberty, due process, equality, free expression, and access to the courts. It also affirms the Commonwealth’s authority to protect residents from arbitrary government power and threats to public health and safety.
To date, Massachusetts has largely relied on reactive, after-the-fact litigation, which often cannot prevent foreseeable and sometimes irreversible constitutional injuries. The Governor must adopt a new mindset: prevent the harm before it occurs.
A Legal and Moral Imperative to Protect Democracy in Massachusetts
The Massachusetts Governor has a sworn duty to employ all lawful tools to protect the state constitutional rights of Massachusetts residents. But when federal agents employ tactics that are designed to circumvent constitutional rights, the Commonwealth’s routine, reactive measures are legally and morally insufficient.
In these extraordinary times, when lawful remedies cannot act fast enough to prevent constitutional injury, civil disobedience by individuals and, more controversially, “extra-legal measures” by public officials can be morally compelled, but only as a last resort.
While many citizens, especially legal professionals, insist on strict obedience to law, prioritizing morality over legality is neither novel nor radical. Consider the Boston Tea Party’s destruction of private property (1773), the Patriots’ revolt against King George III (1775), Henry David Thoreau’s refusal to pay taxes that supported slavery and the Mexican-American War (1846), and Reverend Martin Luther King Jr.’s sustained civil-disobedience campaigns.
Those who have defied laws that perpetuate injustice are often remembered as heroes. America’s most influential voices have stated the moral case directly:
Martin Luther King Jr., Letter from Birmingham Jail (1963): “One has a moral responsibility to disobey unjust laws.”
America’s founders acknowledged a tension that can arise between the law and morality.
Thomas Paine wrote in Common Sense (1776) “THE LAW IS KING… [and] lest any ill use should afterwards arise, let the crown… be demolished.”
Thomas Jefferson warned in his 1810 Letter to John B. Colvin that “The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself… thus absurdly sacrificing the end to the means.”
And Henry David Thoreau stated the problem succinctly in On the Duty of Civil Disobedience (1849): if a law “requires you to be the agent of injustice to another, then I say, break the law.”
Oren Gross argued in the Yale Law Journal (2003) that in extraordinary circumstances posing imminent public calamity, officials may implement otherwise unlawful measures only if they are strictly necessary to protect the public, the legal deviation is openly acknowledged, and the official is subject to ex post public accountability.
A Proactive Strategy to Protect Democracy in Massachusetts
If the Governor means to protect constitutional rights, Massachusetts must shift from reactive litigation to proactive measures to prevent foreseeable injury. Extra-legal measures should be reserved for truly extraordinary circumstances.
Judicial clarification
1. Seek an opinion from the Massachusetts Supreme Judicial Court clarifying whether and how the Massachusetts Constitution may restrain federal officials who violate state constitutional rights.
Transparency and public safety
2. Require all federal law enforcement to display visible identification, refrain from face-covering, and file operational plans with the Commonwealth before enforcement actions.
3. Create a state-managed portal for anonymous uploads of video and photographs and a 24-hour hotline to the Attorney General and to state and local police to report violations.
4. Maintain a public, real-time map of verified federal operations statewide, similar to ICEBlock, which the Department of Justice pressured Apple to remove from its App Store.
Defensive state authority
5. Prohibit federal agents from detaining individuals absent a warrant issued by a Massachusetts judge.
6. Reactivate and deploy the Massachusetts State Defense Force to protect residents from unlawful detention, loss of liberty, and suppression of peaceful protest.
7. Establish a federal tax escrow account to receive all federal remittances collected by the Commonwealth or owed by individuals and businesses, to be used exclusively to sustain federal programs Trump defunded without congressional authorization; assume legal responsibility to protect residents and businesses that use the escrow account.
A Time for Action
As Reverend Niemöller’s poem reminds us: “First they came for the Communists, and I did not speak out because I was not a Communist.” With hindsight, history has proven that apathy and delayed resistance against immoral laws are often viewed as indistinguishable from complicity.
I do not want history to remember me as one who stood by silently when authoritarianism is so obviously sweeping away America’s democracy. Nor do I want to be remembered as the last generation of Americans who lived in a democracy, only to bequeath autocracy to our children and grandchildren.
I implore the Governor of Massachusetts to immediately and proactively employ an aggressive, multifaceted defense of our democracy, using every tool, conventional and, when morally compelled, extra-legal, to protect the constitutional rights of Massachusetts residents.
Massachusetts has defended freedom before. It can do so again. It must do so today.
Hayward Zwerling
24 January 2026
Addendum: Additional suggestions the Massachusetts Governor, AG and legislature should immediately implement are documented at A Governor’s Duty: Protecting Massachusetts from Federal Authoritarianism.