Meyer on Connecticut's Anti-Originalist Constitutions and Its Independent Courts

Linda Ross Meyer, Quinnipiac University School of Law, is publishing Connecticut's Anti-Originalist Constitutions and its Independent Courts in volume 40 of the Quinnipiac Law Review (2022). Here is the abstract.

In recent years, the United States Supreme Court has taken up originalist interpretive approaches to the U.S. Constitution. The Court has become convinced (wrongly, in my view) that a traditional common law-style interpretation of constitutional rights undermines the Court’s authority by overstepping its role, usurping the prerogatives of the democratic branches, and stifling legal development by the states. Instead of reasoning from case to case, treating like cases alike in the usual evolutionary way of the common law, a majority of the members of the Court has insisted that constitutional rights should be frozen by English common law practices or treatises extant during the colonial period, and/or framers’ intentions and/or public understandings of constitutional language in 1789 or 1791 or 1868-70. These various and varying originalist approaches are often justified as providing more certainty in constitutional adjudication. Critics claim, however, that these new “originalisms” have the effect of halting the evolution of constitutional rights at the federal level, eroding stare decisis, and calling into question the continuing validity of some rights and constitutional doctrines that had been generated through prior common law development -- like rights of privacy, qualified immunity, privileges and immunities clause interpretation, retroactivity rules, state action requirements, and sovereign immunity doctrines -- while potentially changing the nature of other constitutional rights to a balance set at an earlier time -- like rights of religious exercise, rights of free speech, and criminal procedural rights. Somewhat ironically, as the originalist reformation takes hold, rights at the federal level are becoming ever more unpredictable and unstable, as the Supreme Court revisits and reevaluates many of its prior decisions in light of the latest originalist theory, or the latest historical scholarship on the colonial or founding period. States, of course, must follow the constitutional decisions of the U.S. Supreme Court, but only as to federal constitutional baselines. State constitutions are free to give their citizens more rights than the federal constitution does, and indeed, a more restrained style of interpreting federal constitutional law is often promoted because of its merit in allowing states more constitutional room to develop their own state constitutional and statutory law. In order to provide a firmer foundation of support for a non-originalist approach to state constitutional adjudication in Connecticut, and to explain why the Connecticut courts should not borrow originalist approaches from federal constitutional cases, as some jurists have argued, this paper makes four assertions: 1) As a matter of Connecticut state constitutional history, it makes no sense to assume as a default rule that the Connecticut Constitution should track the U.S. Supreme Court’s interpretation of the U.S. Constitution (except, of course, where the U.S. Constitution preempts state law). 2) As a matter of Connecticut state constitutional history, it makes no sense to assume that a right not present in the state’s colonial period is not sufficiently deeply rooted in Connecticut history to be protected by Connecticut constitutional law. In other words, colonial or pre-colonial originalism was not the original constitutional methodology in Connecticut. Hence, the failure of a litigant to demonstrate an exactly similar colonial or pre-1818 practice, should not doom a state constitutional argument. 3) As a matter of Connecticut state constitutional history, pre-1818 English common law should also not function as a state constitutional default rule, because Connecticut judges never followed English common law as mandatory authority. 4) Finally, as a matter of Connecticut state constitutional history, Connecticut’s constitutional rights provisions should not be interpreted as merely “codifying” rather than “announcing” constitutional rights, because both the 1818 and 1965 Constitutions were explicitly forward-looking, not backward-looking. In short, a close look at Connecticut constitutional history reveals that the Connecticut Constitution should not be interpreted through an originalist lens, and certainly not through an originalist lens that preferences the colonial or English common law period in the manner of recent U.S. Supreme Court approaches. Instead, the Connecticut courts should reclaim their own essential and historical role as interpreters of Connecticut constitutional and common law on grounds of principle, and on the traditional, common-law-style judicial approach of treating like cases alike. This article provides: 1) an overview of Connecticut constitutional development, demonstrating the future-orientation of Connecticut’s 1818 and 1965 Constitutions, 2) an analysis of the way in which the “historical” aspects of Connecticut constitutional analysis have been interpreted, and misinterpreted, by the Connecticut courts, 3) a suggestion that one of the most unique features of Connecticut’s legal development is a tradition of legal independence from historical authority that encouraged locally-informed, common-law-style interpretive practices by its courts, since Connecticut never “received” the English common law and did not adopt the federal Bill of Rights until well after the “founding” period, 4) suggests that the Constitutions of 1818 and 1965 offer more appropriate temporal points of reference for Connecticut constitutional interpretation than the pre-1818 era, even were the Connecticut courts to take an originalist approach, in part because of the more broadly representative group of framers who were involved (which in 1965 included white women, black men, and many groups traditionally excluded from government, like Catholics, Irish, Italians, Jews, and Poles) and 5) counsels generally against using originalist approaches to state constitutional interpretation as unworkable and uncertain, unfair to litigants without special access to historical sources, and contrary to the common law approach instantiated in core legal principles of reasoned and principled argument, equal treatment, and stare decisis.

Download the article from SSRN at the link.