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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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The results of elections of justices to the Minnesota Supreme Court from 1857 through 2008 are posted in this article.
The results of the elections to the court in 1984, 1986, 1988, and 1990 are unavailable.
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In 1899, "The Medico-Legal Journal" published a two-part article on Minnesota. The first part consisted of short paragraphs on the early history of the state and a list of supreme court justices and their terms. Profiles of the justices formed the second part of the article. Clark Bell, a New York lawyer, edited the "Journal" and wrote most of this article.
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Wallace Barton Douglas graduated from the law department of the University of Michigan in 1875. Eight years later, he moved to Moorhead, served as city attorney, and later county attorney of Clay County. After several terms in the state legislature, he was elected Attorney General, serving from 1899 to March 1904, when he resigned to accept appointment to the state supreme court. His tenure was very short. In the election of November 1904, he was defeated by Edwin Jaggard. He returned to private practice in St. Paul. He died on December 9, 1930. On April 4th of the following year, a memorial was held for him by the Ramsey County Bar Association.
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The 1892 election was the first of four judicial elections where the start of the terms of the certain associate justices was delayed one year. Three associate justices, who were elected in November 1892, did not take office until January 1894; three justices elected in November 1898, did not take office until January 1900; three justices elected in November 1904, did not take office until January 1906; and two justices were elected in November 1910, to terms beginning January 1912.
This article suggests a solution to the puzzle of these four elections.
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This article is a history of the emergence of employment law as a separate discipline within the legal profession from the early 1980s through the end of the century. The article emphasizes developments in Minnesota.
The roots of employment law lie in the civil rights movement, not that of organized labor. A trilogy of state supreme court cases in the early 1980s -- the decisions of the Michigan Supreme Court in "Toussaint v. Blue Cross & Blue Shield of Michigan" (1980), the New York Court of Appeals in "Weiner v. McGraw-Hill, Inc." (1982), and the Minnesota Supreme Court in "Pine River State Bank v. Mettille" (1983) -- influenced supreme courts in other states to recognize challenges to the common law "at-will rule." Of these three cases, "Pine River" was the most influential, and this is demonstrated by bar graphs showing the frequency of its citation by Minnesota courts, appellate courts in sister states, and in law reviews. Its influence can also be seen in the frequency it was quoted by other courts.
By the 1990s, lawyers began to identify themselves as "employment lawyers." A legal "specialty" is characterized by the formation of professional organizations, honor societies, the publication of specialized literature and journals, and the offering of courses in law schools, all of which occurred in the late 1980s and early 1990s. With the passage of the ADA (1990), the 1991 amendments to the Civil Rights Act of 1964, and the FMLA (1993), employment law as a specialty within the legal profession came into being.
This article was published first at 33 William Mitchell Law Review 297-337 (2006).
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