We in Connecticut live under a Constitution that was adopted in 1965 and has been amended more times since then than the U.S. Constitution has since 1788. But the delegates in 1965 were interested in little else than keeping the federal courts off Connecticut's back because of the one-person-one-vote decisions that the federal courts had just issued.

For that reason, most of the text of Connecticut's first Constitution, adopted in 1818, was included without change, or with only cosmetic change (“inferiour” courts became lower courts; the Supreme Court of Errors became the Supreme Court) in the 1965 Constitution.

So when one wants to know what most of the 1965 Constitution means if the language is unclear, one should turn to the debates in 1818. And if one does so, one finds a goldmine of thoughts of current importance.

We have just concluded an election for state and national representatives who will, shockingly enough, probably be trying to figure out how to gerrymander legislative districts to their and their party's advantage in 2020.

Gerrymandering cases are pending in the U.S. Supreme Court on various grounds and perhaps the Connecticut Supreme Court will be asked to take a look at the issue. If that happens, someone ought to ask the justices to take note that voting rights were a major issue in 1818. Delegate Timothy Pitkin had this to say on the subject during the era when Gov. Elbridge Gerry was busy arranging the shape of districts for the election of favored candidates in Massachusetts:

“The legislature should have nothing to do with regulating their own members, or mode of election; they are the representative of the people, and it is for the people to say how many representatives they will have, and how they shall be chosen.”

In addition to thinking that gerrymandering is OK, legislators sometimes think that it is their role to decide what the law is. We had been taught in law school that, at least since the time of Chief Justice John Marshall, that was a judicial function. Apparently we have been misinformed. If the legislators disagree with the Connecticut Supreme Court's interpretation of a statute, they have been known to “clarify” the statute to their liking. The Supreme Court then says the clarification applies to all cases, even those that concern facts that arose before the clarifying statute was adopted. Clarifying statutes supposedly avoids the messy due process and other objections that would arise if the legislators said they were adopting a statute retroactively.

The next time the legislators disagree with the Supreme Court and pass a clarifying act, someone ought to dust off the following remark by Delegate Nathan Smith in 1818 during the debate on the separation of powers provision that became Article Second:

“Coming to the Judicial department, shall the legislature be the judge, who is to put a construction upon the law which he has not made himself? Has not this been declared to be the very definition of despotism? It is remarked in Mr. Jefferson's Notes on Virginia, that he cares not, whether there be one despot, or two hundred & ten.”

Perhaps the point could be put a bit more delicately than by calling legislators despots, but perhaps also we were once correct in thinking that it is the judicial branch that decides what the law is.

The 1818 Constitution was adopted in the fall of 1818. On the 200th anniversary, it is appropriate to dust off the newspaper reports of the debates and use them to improve our society today.