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Debates at the 1818 Constitutional Convention

November 14, 2018

 

This fall being the 200th anniversary of the 1818 Connecticut Constitutional Convention, I was asked by the Connecticut Historical Society to speak in October to its membership about the importance of that Convention today. It was an interesting group to address—not my usual fare of lawyers with a fuzzy knowledge of Connecticut history but historians with an intimate knowledge of it.

I first pointed out that, while we live today under the 1965 Constitution, most of its terms were adopted verbatim or almost verbatim from the 1818 Constitution, making the 1818 debates relevant today. Nor can we assume that those debates were similar to the debates at the federal convention in 1787 because, first of all, a whole generation had gone by, and, second, the three main issues in the 1818 Convention were of little interest or importance in 1787. Those three issues were: (1) disestablishment of the Congregational Church; (2) separation of powers; and (3) expansion of the voter base.

The first issue resulted in two provisions in the 1818 Constitution that survive today: a religious freedom clause that is similar (but by no means identical) to the First Amendment, and a disestablishment article (Article Seventh) that is like nothing in the federal constitution. That Article focuses on private institutions as opposed to individual rights and could well be pressed into action whenever a law in effect favors one religious institution over another (subsidizing busing to religious schools comes to mind).

The federal constitution has much weaker separation of powers provisions than the 1818 Constitution. For example, Congress has control of the rule-making powers of the courts. I pointed out that the legislative overruling of a judicial decision in 1815 was the main reason in 1818 for adopting the strong Article Second on separation of powers. The legislature today continues to usurp the powers of the courts to declare what the law is by “clarifying” statutes in response to Supreme Court decisions with which the legislators disagree. Language in the debates suggests that clarifying statutes are unconstitutional.

As for expanding the voter base, expansion means little if incumbent legislators can pack hostile sets of voters into gerrymandered districts. Once again language at the 1818 Convention is relevant today, because it provides ammunition to attack gerrymandering.

The historians present received this history lesson from a lawyer well. Now is the time to celebrate the 200th anniversary of an enduring document: the 1818 Connecticut Constitution.

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