The Land of Steady Constitutional Habits

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by Wesley Horton FALL 2012

Connecticut has been governed for 373 years—including the 137 years it was a part of the British colonies—by three documents adopted by the people of Connecticut themselves. The first document was adopted in 1639, the second in 1818, and the third in 1965. That makes Connecticut truly the Land of Steady Constitutional Habits. And it all began with Rev. Thomas Hooker and a group of fellow Puritans from Boston.

Hooker and his followers who left Boston and settled in the Hartford area in the mid-1630s were set in their ways. They didn’t want anyone else telling them how to run their affairs—not the king, not anyone else in England, not even the Puritans in Boston. Only God could tell them how to do so. They created a settlement in which there was to be no religious hierarchy, each congregation would operate on its own, and each person would be afforded at least minimal education so that he or she could independently read the Bible to determine from the authoritative written word (with the assistance of the preacher, of course) what God was saying.

The Hartford Puritans were so determined that every person be able to read the Bible that both boys and girls, including enslaved children (Connecticut was a slave state until 1848; after all, the Bible tolerated slavery), were required to be educated in order to enable them, as the Code of 1650 put it, “perfectly to read the English tongue.” Furthermore, “it being one chief project of that old deluder Satan to keep men from the knowledge of Scriptures,” a school had to be provided and attendance was mandatory in towns with more than 50 inhabitants. Even Indians, as they then were called, were allowed to attend colonial schools. The thinking apparently was that universal literacy leads to steady habits.

The settlers lost little time putting their fixed views into practice in their form of government. Formal government started under the authority of a commission granted by Massachusetts in March 1636. As all the commissioners were settlers, after one year they simply ignored Massachusetts and England in their governance.

On May 31, 1638, a Wednesday, Rev. Hooker preached a sermon. It has been generally thought that Hooker’s mid-week sermon was actually a lecture to the general assembly (officially called the General Court until the 1660s) about drafting a formal document of self-rule. In the latest edition of the journal of the Connecticut Supreme Court Historical Society (volume V), though, Attorney Michael Besso asserts that Hooker was simply addressing his congregation in a sermon, just as he typically did every Wednesday. His text was Deuteronomy 1:13, which concerns God’s order to choose wise men to rule. The Puritans in general and Hooker in particular were under the influence of John Calvin, who held that in that passage God had in his grace given the Genevans the gift of self-rule. Hooker perceived that God had given the same gift to the Connecticut settlers. He warned in the sermon that they must use that gift wisely and in accordance with the word of God.

Whether Hooker played a direct role in the formation of Connecticut’s civil government is not known because the proceedings of the general court from April 1638 to April 1639 are missing. What we do know is that, whatever the forum, Hooker’s views as the religious leader of a devoutly religious colony were likely to have great influence on the civil leaders. What we also know is that a governing document called “Fundamental Orders” was “voted” (by whom we also do not know) on January 14, 1639, seven-and-a-half months after Hooker’s sermon. (The document says 1638 because the settlers followed the sensible convention of the time that the New Year should start around the beginning of spring.)

The Fundamental Orders is a remarkable document. It is the first document anywhere in the world enacted by local residents to govern themselves on a permanent basis. While reasonable minds may differ, I consider the adoption of the Orders to be why Connecticut today is properly called the Constitution State. The first sentence of the Orders echoes Calvinist doctrine: “Foreasmuch as it hath pleased the Almighty God . . . that we . . . are now cohabitating and dwelling in and upon the River of Connectecotte, and the lands thereunto adjoining; and well knowing . . . the word of God requires . . . an orderly and decent Government established according to God . . .; do therefore . . . decree as followeth:” Whereupon eleven orders set out all the powers and organization of the government. No mention is made of England, parliament, or the king—only God.

Enacting the Fundamental Orders may have been a bit presumptuous at the time, but for most of the colonial era Connecticut was self-governing. The governor and all legislators were chosen locally. While individual orders were amended from time to time, the basic framework remained, and any changes were always made locally and only locally. The other colonies, except Rhode Island, were governed to a great extent from London, typically through the appointment of the governor and the upper house of the legislature by the king.

It is true that the restoration of the monarchy in 1660 motivated the colony to seek a charter signed by the king. The colonists got an excellent charter in 1662 from Charles II that put the crown’s imprimatur on the colonists’ continuing to do what they had been doing anyway since 1639 under the Orders. Indeed, when the colonists voted to amend various provisions in the Orders over the following century, they did so without bothering to inform the monarch that these changes were contrary to various provisions of the Charter. The charter also gave them land all the way to “the South Sea on the West part” (the Pacific Ocean), which later caused territorial disputes in Pennsylvania (See “The Map that Wasn’t a Map,” spring 2012).

The king apparently wanted to consolidate the New England colonies into one dominion more easily controlled from London; he must have thought that granting Connecticut a charter was a step in that direction. Indeed, it did result in one step, but only one step, in that direction when charterless New Haven colony decided to join Connecticut colony in 1665.

No further consolidation occurred until Charles II’s brother, James II, became king in 1685. Soon thereafter he authorized Edward Andros as governor of New England to consolidate all the New England colonies under his control. Andros traveled with an armed force to Hartford on October 31, 1687 and demanded the charter back. Legend has it that the colonists hid the charter in an oak tree (I find this hard to believe; how come there is no squirrel or water damage?) and waited out the months while Andros ruled Connecticut and the rest of New England until James II was overthrown in November 1688, after which William and Mary became joint monarchs. Taking advantage of Andros’s fall, along with that of the fallen monarch, and perhaps also taking advantage of the new monarchs’ focus elsewhere, the colonists in May 1689 reenacted every single law that had been on the books before the takeover. (Unlike James II, whose staunch Catholic faith cost him his crown, the colonists perhaps also were taking advantage of their staunch Protestant faith.)

Thereafter, outsiders had even less success in exerting authority over Connecticut. In 1693 New York Governor Benjamin Fletcher, a royal appointee, appeared in Hartford, as had Andros before him, and attempted to take over. Unlike Andros, Fletcher met resistance and left. The following spring King William III ratified a report verifying that the charter had not been revoked. This ended threats to Connecticut’s existence from other colonies. Attempts by Massachusetts to initiate legal proceedings challenging Connecticut’s legal existence went nowhere. Connecticut even asserted its de facto independence from England in a probate dispute in the 1720s in which the Connecticut court refused to follow English law under which the eldest son inherits all the land. John Winthrop, the eldest son of one Wait Winthrop, challenged the Connecticut court’s Winthrop v. Lechmere decision. That ruling had resulted in Winthrop’s having to share the inheritance of his father’s real estate with his sister Ann Lechmere. In 1726, Winthrop (nephew of former Connecticut Governor John Winthrop) took his appeal to the Privy Council in London in hopes of having the Connecticut court’s decision overturned. In 1728 the Privy Council did in fact reverse that decision, but when Winthrop attempted to execute on the judgment of reversal, Connecticut authorities simply ignored the Privy Council judgment.

Between the 1730s and 1776, one significant event brought Connecticut to the attention of the authorities in England, but they did not take action against Connecticut’s self-rule. It involved a brouhaha in 1753-1754 over the rescue of a Spanish ship that had foundered off New London. There were false rumors that the Connecticut governor was involved in some irregularities when an agent he appointed to load the cargo onto a substitute ship in fact made off with some of the contents. The Spanish government might have pressed the English government to do something, but luckily for Connecticut the issue died away without any intervention by the crown.

One other significant event might have brought Connecticut to the attention of the English authorities, but did not. It concerned Connecticut’s claim under its charter to northern Pennsylvania and Ohio. Land speculators from Connecticut began settling in northeastern Pennsylvania in the 1750s, and by 1773 Connecticut’s general assembly had incorporated the Town of Westmoreland in that colony. The risk of course was that Connecticut and Pennsylvania would present competing claims to England. But 1776 intervened before England had a chance to take up the issue.

Since Connecticut already was de facto independent in 1776, few changes were made in the state’s governing documents except on minor issues such as changing the name of the king’s attorney to the state’s attorney. Unlike 11 other new states, Connecticut saw no need to write a new constitution. (Rhode Island saw no need to make a new constitution, either, but it was not the land of steady constitutional habits: Its failure to do so led to civil war in the 1840s!) Whatever changes were deemed necessary after 1639 had been made on an incremental basis, and 1776 provided no occasion for unsteadying the constitutional ship.

Connecticut finally got around to writing a new constitution in 1818. But unlike the U.S. Constitutional Convention of 1787, which set out to create an entirely new government, the Connecticut Constitutional Convention of 1818 had primarily three things in mind: disestablishing the Congregational Church as the official, tax-funded church of the state, providing for judicial independence, and expanding the suffrage (but only for white males). It also aimed to create an explicit bill of rights. Otherwise, the 1818 constitution largely continued the government as it had existed before. Indeed, lawyers tracing statutes back to their original language find no legal barrier in 1818, 1776, or 1688; the language in statutes today occasionally traces directly back to public acts originally passed in the 17th century and first organized into a code by Roger Ludlow, the one lawyer in Connecticut in 1650.

During the late 19th century populist unrest led to many constitutional changes elsewhere in the country, such as the popular election of all judges. But that movement never made much headway in Connecticut. In 1902 a constitutional convention was called primarily to reapportion the general assembly, which heavily favored rural towns over the cities, but the voters rejected the proposed constitution.

Connecticut did get around to writing another constitution— the one we currently live under—in 1965. But the 1965 Constitutional Convention was called for the same narrow purpose as the 1902 Convention—to reapportion the general assembly. The problem in 1965 was more acute than in 1902 because the federal court in Butterworth v. Dempsey in 1964 had declared that Connecticut’s apportionment of the general assembly violated the one-man-one-vote decisions of the U.S. Supreme Court. Baker v. Carr (1962) and Reynolds v. Sims (1964) found that both branches of the general assembly had districts of widely varying population but the same number of representatives. Unless Connecticut did something, the federal courts would do it for them. A constitutional convention accordingly was called and made the appropriate state constitutional changes to keep the federal wolves at bay.

Other than reapportionment, the 1965 constitution is largely a repeat of the 1818 constitution. Indeed, most of the language is so similar that the Connecticut Supreme Court, in interpreting a provision that is similar in both constitutions, will generally focus on what the provision meant in 1818, not 1965. The 1965 constitution does have a new provision that the voters must decide every 20 years whether they want a constitutional convention. Consistent with Connecticut’s steady habits, the voters opted against a convention in 1986 and again in 2008.

Connecticut’s steady constitutional habits have been reinforced by the role of the Connecticut Supreme Court. This court has been in existence since 1784. Until the 1818 constitution was adopted, Supreme Court decisions could be appealed to the general assembly, but since 1818 the Connecticut Supreme Court’s decisions have been final (unless a federal issue allows an appeal to the United States Supreme Court).

The Connecticut Supreme Court has not had the dramatic and often sudden changes in philosophy that one often sees in the United States Supreme Court. For example, nothing like the abrupt turnaround in the U.S. Supreme Court’s attitude toward the New Deal in 1937 has ever happened in the Connecticut Supreme Court. One reason is that, until the mid-1980s, Connecticut had a tradition (which had become firmly entrenched by 1900) that the justice with the most seniority would be appointed chief justice and the judge on the superior court with the most seniority would be promoted to the supreme court. Thus Republican governors and legislators would routinely and without much controversy promote judges and justices originally appointed to the superior court by Democrats, and vice versa.

There have been exceptions, most notably when the Democrats arranged for Republican U.S. Senator Raymond Baldwin to be appointed directly to the Connecticut Supreme Court in 1949 to create a vacancy in the U.S. Senate to be filled by a Democrat. But in general the tradition meant no wide swing in the philosophy of the court over the years. Even today, the governor’s nominations to the state supreme court rarely engender much controversy from members of the opposition party in the general assembly, likely because governors do not appear to have used the process to promote some liberal or conservative political or judicial agenda.

That justices and judges are not elected reinforces the steady jurisprudence of the courts. Changes come incrementally, and thus decisions are more likely to be accepted by politicians and the general public as being reasonably apolitical.

An interesting aspect of Connecticut’s steady constitutional habits is that concepts we take for granted today originated early on in Connecticut. Thus steadiness sometimes shows not stubborn resistance to change but commendable foresight. One example is of course the Fundamental Orders. Another is universal mandatory education, which no doubt helped make Connecticut the wealthiest colony and since 1776 the wealthiest state. The early decisions of the Connecticut Supreme Court similarly suggest foresight. While the doctrine that the courts could declare statutes unconstitutional is often thought to have been first expounded in the New World by Chief Justice John Marshall in 1803 in Marbury v. Madison, in fact it had been expounded before that by a number of state courts, the earliest being the Connecticut Supreme Court in 1784 in Symsbury Case. The court held that, the general assembly having already given some land to proprietors of Symsbury, it could not thereafter give the same land to proprietors of Windsor—and in effect declared, without expressly saying so, that the statute giving the land to Windsor was unconstitutional. The early prestigious role of the Connecticut Supreme Court supported the steadiness of our constitutional habits. Once the high court’s prestige was established, later courts needed only to build on the existing decisions. Unlike the U.S. Supreme Court, never has the Connecticut Supreme Court felt the need to repudiate infamous decisions such as Dred Scott or Plessy v. Ferguson or infamous whole judicial eras such as the time of the anti-New Deal decisions. Even when the Connecticut Supreme Court made headlines, such as in Sheff v. O’Neill, which struck down as unconstitutional de facto segregation of the public schools in the Hartford metropolitan area, its decision was firmly based on the judicial precedent of a 1977 school finance decision, Horton v. Meskill, the language of the 1965 constitution, and, most important, the history of the importance of education going back to the 1630s.

So here we are in 2012. We have been largely self-governing since the 1630s. The Puritans believed God in his grace gave them self-government and ordered them to choose their leaders wisely. Whether wisely or not, we have governed ourselves in a way that has evolved but never fundamentally changed (we did successfully hide the charter somewhere, after all!) for 375 years. I guess that qualifies Connecticut as the Land of Steady Constitutional Habits.

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