Connecticut Supreme Court History
Volume II (2007)

Editor’s Introduction

Michael Besso, Editor 

Welcome to the second issue of Connecticut Supreme Court History. This 2007 volume continues the journal’s emphasis on both the celebration of important events in the Supreme Court’s history and the project of revealing, analyzing, and learning from this history. 

A major celebratory event is the installation, this year, of Chase T. Rogers as the thirty-seventh Chief Justice of the constitutionally independent judiciary. The ceremonial swearing-in of Chief Justice Rogers occurred on June 14, and it brought together with the new Chief Justice both Governor M. Jodi Rell and former Chief Justice Ellen Ash Peters. To memorialize this event, the journal publishes the remarks presented by each of these three. 

This issue also joins in a broader commemoration of the publication this year of several major works about the 1818 Connecticut Constitution. First, the State of Connecticut has published two new volumes of its Public Records, which cover the important years leading to and through the adoption of the new constitution, from 1816 to 1818. Second, The Acorn Club has published a volume of newspaper commentary about the political movement toward a new constitution and the public debates over its ratification. 

Regarding the Public Records volumes, the two published new this year cover, first, the years 1816 and 1817, and, second, 1818. The Public Records present a wide-range of state government affairs, as well as selected material from outside government circles. The relevance of these now-collected and readily available records to Connecticut Supreme Court history should be obvious to those who have even a basic appreciation of the history surrounding the 1818 constitution. Here, Douglas Arnold, the editor of the two recent volumes, provides an informative overview for our readership. He describes the general mission of the Public Records project and outlines the significant material presented in these new volumes. Dr. Arnold helpfully highlights, as well, the material that would likely be of greatest interest to our readership, regarding the judiciary. In the volumes themselves, Dr. Arnold provides extended interpretive essays that both assess the Connecticut material and set it in the context of broader national politics. His overview in our pages cannot substitute for the more extensive commentary and analysis in the Public Records volumes. The essay here should serve as an introduction and invitation to engage directly in research in these records. 

Regarding The Acorn Club volume of public commentary on the creation of the 1818 constitution, entitled Original Discontents, Professor Richard Buel, co-editor of the work, here provides a similarly helpful guide for our readers. He introduces the Original Discontents project and its collection of significant pamphlet and newspaper-based debates about the new constitution. In the early 1800s, newspapers were flourishing as settings of public discourse, and many papers aligned themselves with the agendas of the major competing political factions of the day—Federalist or Republican (later, Toleration-Reform). Given the partisan disputes which underlaid and animated the debates about a constitution for Connecticut, the newspapers’ published commentaries on both sides of the issue are both lively and informative. In our pages Professor Buel also adds to his overview of the Original Discontents project a significant substantive essay. I urge our readers to engage this essay, because it emphasizes the broader national (and international) situation that shaped political developments in Connecticut. While much of the existing scholarship on the 1818 constitution and creation of the judiciary focuses on internal politics, Professor Buel now invites us to consider these broader factors. As with the Public Records volumes, direct engagement with Original Discontents will benefit any with an interest in Connecticut Supreme Court history. 

These two contributions to this issue, as significant as they are, are enhanced because of the invaluable interpretive essay provided by Donald Rogers. Dr. Rogers reviews, in detail, both the new Public Records volumes and Original Discontents, and he sets them in the context of the major historiographical contributions regarding the 1818 constitution—including, for example, classic works by J. Hammond Trumbull (Historical Notes on the Constitutions of Connecticut (1901)) and Richard Purcell (Connecticut in Transition, 1775-1818 (1918)). Dr. Rogers notes the importance of the most recent additions to this literature, especially in light of the primary source material that they make available to a wider scholarly community and public. His review also includes an assessment of the interpretive analyses provided by Dr. Arnold and Professor Buel, in their respective volumes. As is the case with the best review essays, Dr. Rogers in these pages presents not merely a review of other works, but a major substantive contribution of his own, as he assesses the literature and various theses and arguments about the meaning and interpretation of the events culminating in the 1818 constitution. 

The essays by Dr. Arnold, Professor Buel, and Dr. Rogers demonstrate that our understandings of not only the 1818 constitution but also Connecticut Supreme Court history are likely to undergo significant advances in the years to come. It now seems as if, in many ways, our existing scholarship and stories have been scratching only the surface of a deeper, richer, but also more complicated history. Furthermore, it appears as if it is not a history of all progress and glory—there is certainly no room in this day for “Whig” histories, for example, of our Supreme Court—but of ups, downs, and sidetracks. Research into and assessment of this history is now, in light of these recent works, ready for reinvigoration. 

In addition to these significant contributions, this issue also presents two reviews of Supreme Court decisions. Wystan Ackerman authors a review of Court decisions in which the Court itself opines about its creation. This review highlights cases from the early 1800s, soon after the creation of the constitutionally independent judiciary, through the late twentieth century. Attorney Ackerman reveals that, over time, the Court itself has understood the meaning and significance of its own creation differently—that is, at different times, the Court has in effect articulated different stories about its creation. While there exist other notable studies and articles about, for example, judicial power (and separation of powers, generally), Attorney Ackerman looks at the Court’s well-known cases in a new way and also brings attention to an important line of decisions regarding the “fact finding” power of the “court of errors.” He notes not only the shifts in understandings of power over time but the significance of these shifts for insights into the Court’s description of its own history. In the end, we learn that the story that the Court tells today about itself is not the same story it has told in years past. How these different stories, over time, accord with the new insights into the history of the 1818 constitution should be the source of further assessment. 

The editors also present an in-depth case review of State v. Danforth, an 1819 case that certainly qualifies for title as the first major case decided by the constitutionally independent Supreme Court. Danforth involved a conviction of Stephen Danforth for a common law crime. The defendant appealed that conviction on a number of grounds, each of which in effect relied on the new constitution’s separation of powers for the proposition that the judiciary no longer possessed a common law power to declare and punish crimes. Such a power, according to his view, was legislative only. The Supreme Court rejected the argument and held that it continued, even after the adoption of the constitution, to possess the common law power to declare and punish crimes. The case is significant not only for this holding but also for the dissent: Justice John T. Peters disagreed, and he strongly argued that the new constitution indeed did divest the judiciary of whatever pre-constitution common law power it might have exercised. In addition to a detailed review of the case, the essay assesses its significance in light of the exercise of judicial power over time, into the late twentieth century and the present. The Danforth study, here, serves as a fine complement to the more encompassing review presented in Attorney Ackerman’s essay. 

The editors hope that this volume of Connecticut Supreme Court History continues to serve the interests of all those interested in this state’s judicial history, by making available the best relevant scholarship from history, law, and other disciplines.

Connecticut Supreme Court History, Vol. II | Publications