Linda Ross Meyer, Quinnipiac University School of Law, has posted Connecticut's Anti-Originalist Constitutions and its Independent Courts, which is to appear in the Quinnipiac Law Review. From the abstract:
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.--Dan Ernst
