Connecticut Supreme Court History
Volume II (2007)

THE Connecticut Supreme Court on the creation of a constitutionally distinct judicial department in the 1818 constitution

 Wystan M. Ackerman

 Abstract  

This essay examines the significance Supreme Court’s own views on the creation of the judicial department in 1818, as reflected in the court’s opinions. In one form or another, prior to the adoption of the new constitution the General Assembly had exercised the supreme judicial power of the state as well as the legislative power. A separate judicial branch was formally created in the 1818 Constitution, which provided, in Article 2, that “[t]he powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy—to wit—those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” The significance of these historical facts for the Court’s decision-making since 1818 continues to attract scholarly attention. 

Wystan Ackerman’s essay provides a review of the history of the Supreme Court’s pronouncements regarding its own creation. It reveals that, during the first sixty years after the 1818 constitution was adopted, when the Court was presented with questions that required it to interpret the meaning of the founding of the judicial branch, it concluded that the 1818 constitution was largely intended to maintain the status quo prior to 1818. For example, the Court continued to recognize common law crimes, a power that today is the exclusive province of the legislature. And the court also allowed the legislature to continue to grant divorces, a practice that was well-established prior to and through 1818, but that today would be a matter clearly confined to the court system. At the time, some lawyers -- and at least one justice -- argued that the constitution was intended to preclude the Court from exercising any “legislative” powers and to strip the General Assembly of the “judicial” powers it had previously exercised. But the Court refused to adopt that position, “not wanting to upset the applecart in our land of steady habits.” The essay’s review then highlights the transition in the judiciary’s conception of its founding. In the late 19^th and through the 20^th centuries the Court ultimately interpreted (or re-interpreted) the 1818 constitution as effecting a fundamental change rather than constitutionalizing pre-1818 practices. This illumination of the Court’s various approaches to its own history is itself significant for our appreciation of the Court’s development over time.

Connecticut Supreme Court History, Vol. II | Publications