Very little of the burgeoning literature on "originalism" is devoted to its place in state constitutional law. This article explores practical barriers to the use of originalism by the Minnesota Supreme Court. It does not address the worthiness of the originalist school of adjudication
For all originalists, the deliberations of the constitutional convention are critically important. Minnesota's pre-statehood constitutional convention, held in July and August, 1857, was likely the most dysfunctional of all such conventions in nineteenth century America. It split into two partisan "wings" that refused to confer with one another. The final document, submitted to the voters on October 13, 1857, was drafted by a conference committee that kept no notes of its deliberations. In 1865, the state's second chief justice, Thomas Wilson, even wrote that the debates of the two "wings" were not proper authority for the court to cite when construing the state constitution. Since that time, they have been cited only a handful of times.
When construing provisions in their constitutions that have close counterparts in the federal constitution, state supreme courts generally follow decisions of the United States Supreme Court. It may be recalled that the "supreme law" of territories before they attained statehood was the federal constitution.
The drafters of state constitutions in the nineteenth century copied or borrowed from other state constitutions--including rights guarantees--but those "borrowers" did not always have access to the debates, books and other authorities which were used to write the constitutions they copied. One consequence of "borrowing" is "horizontal federalism" whereby state supreme courts habitually look at how the highest courts of sister states have addressed a particular constitutional issue. They do not try to figure out the original meaning of a provision in some other state constitution that was copied by the drafters of their own.
Another formidable but frequently overlooked barrier to state court originalism is the fact that appellate lawyers (and state court judges for that matter) lack the training and discipline of professional historians, and as a result their research into original meaning or intent descends into unreliable "law office history."
As reincarnated in the 1970s, originalism sought to limit "rights" activism by federal courts. But at the state court level, it had to contend with a powerful countervailing intellectual force--the "new judicial federalism"--which sought to preserve or restore the state's historic function as the first-line guarantor of individual rights. In its original ambitions, the new judicial federalism was the antithesis of originalism.
This article appeared first in 30 William Mitchell Law Review 241-271 (2003).
Sections V and VI of this article formed the basis of the Minnesota Supreme Court's discussion of its changing interpretations of the state constitution, the new judicial federalism, and other matters in Kahn v. Griffin, 701 N.W.2d 815, 825-30 (Minn. 2005).
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