By Mitchell S. Brody [*]
In reacting to the increasing conservatism of the United States Supreme Court after William H. Rehnquist replaced Earl Warren as Chief Justice, the historically liberal Connecticut Supreme Court, relying on the Connecticut Constitution, expanded individual rights beyond the protections afforded by the U.S. Constitution and retained rights that were being diminished under federal jurisprudence. In doing so, the Connecticut Supreme Court joined other state courts in responding to the observation of United States Supreme Court Justice William J. Brennan that they were empowered by their independent state constitutions to safeguard constitutional rights in the face of eroding federal constitutional protections.[1] To this end, the Connecticut Supreme Court has interpreted the Connecticut Constitution during the last three decades, and its constitutional analysis sheds light on its likely response to the United States Supreme Court's new conservative majority.
At the core of the Connecticut Supreme Court's state constitutional analysis has been its conclusion that the Connecticut constitution is a "living document."[2] The Court explained that a living document must be interpreted in accordance with the "demands of modern society," and not "too narrowly or too literally," to ensure that, as an "instrument for progress," it retains contemporary effectiveness.[3] The Court also identified various nonexclusive factors that could be germane to identifying modern societal demands, including: relevant federal, Connecticut, and sister-state precedent; the constitutional text; the intent of the Connecticut Constitution's adopters; and public policy considerations.[4] What has received insufficient attention is the Court's caveat that often, in determining what it means to be a living document, constitutional interpretation will "turn upon a factual assessment of how society feels about certain matters," as gauged by either a national or local consensus on the matter at hand.[5] The Court also observed that, previously, it had invoked the state constitution to afford "broader protection of certain personal rights than that afforded by similar or even identical provisions of the federal constitution,"[6] thereby associating the progress that a living constitution seeks to achieve with the expansion of existing rights. The analytic upshot of the Connecticut Supreme Court deeming the Connecticut Constitution to be a living document is that constitutional meaning may be derived from sources other than the adopters' intentions, the literal scope of constitutional text, and related societal trends around the time of the ratification of Connecticut's 1818 Constitution.
But this method of analyzing the meaning of a living constitution is inherently contradictory because it is intertwined with ascertaining societal feelings and demands: it aims to be enduring by creating durable precedent,[7] but explicates modern societal preferences,[8] which are temporary because they are contemporary and, therefore, change as a dynamic society changes. And, for Connecticut jurisprudence, there is an imperative to resolve this contradiction, which stems from the recent preferred position of the state constitution when it matters most: where federal constitutional claims are based upon unsettled or inconclusive law, this jurisprudence turns first to the state constitution because the resulting "interpretation ... is final and conclusive," whereas "only an informed guess of the meaning of the federal constitution" can be offered.[9]
One of the ways the Connecticut Supreme Court has, in effect, attempted to resolve this contradiction is by finding continuity in the original and modern meaning of article first, sections 4 and 5, of the Connecticut Constitution, based on these provisions continuously and expansively protecting speech from punishment under state criminal laws. This linkage between the Connecticut Constitution's past and present renders the precedential value of decisions applying sections 4 and 5 more durable because they are grounded in more than societal feelings and demands about a particular free speech matter, which otherwise would be subject to the vagaries of changing times and court membership. This linkage also lends legitimacy to conclusions as to the content of societal feelings and demands by virtue of countering the appearance that they are little more than the sum of individual judges either declaiming what society believes or assuming that their personal beliefs and societal beliefs are the same.
The pitfall of this analysis is that, originally, sections 4 (then § 6) and 5 (then § 7) never supplied expansive free speech rights. Instead, these provisions offered qualified rights that are circumscribed when they trench upon, by abusing, the rights of others. Therefore, the Connecticut Supreme Court has erroneously captured original constitutional meaning to support living constitution outcomes consistent with, and bolstering, its assumption that modern society believes in safeguarding free speech by expanding it. This flawed constitutional analysis does not merge original and living constitutional meaning; instead, it misappropriates the former in the interests of the latter. Left uncorrected, it could mar how the abidingly liberal Connecticut Supreme Court will respond to the new conservative majority of the United States Supreme Court.
It was the Connecticut Supreme Court's decision in State v. Linares, [10] that erroneously altered the meaning of article first, sections 4 and 5, by concluding that these provisions originally provided expansive free speech rights. The Linares Court's analysis compared the First Amendment's text ("Congress shall make no law ... abridging the freedom of speech, or of the press ...") with the text of section 4 ("[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty") and section 5 ("[n]o law shall ever be passed to curtail or restrain the liberty of speech or of the press"). The Linares Court concluded that sections 4 and 5 afforded greater free speech protection than the First Amendment because of section 4's broad ambit, in that only its text contains the word "publish" and the words "on all subjects," and because of section 5's forcefulness, in that only its text contains the word "ever."[11]
In addition, the Linares Court derived the expansive free speech protections of sections 4 and 5 from society's belief in, or feelings for, "tolerance and cultural diversity" during the years surrounding the adoption of Connecticut's 1818 Constitution, which was manifested in support for the separation of church and state that fostered enhanced civil liberties and individuality.[12] According to the Linares Court, the value that society placed in such tolerance and cultural diversity revealed that the adopters of the 1818 constitution contemplated "vibrant public speech, and a minimum of governmental interference."[13] Importantly, the Linares Court linked these original sources of the expansive free speech rights to sections 4 and 5's place within a living state constitution, which, as an instrument of progress, aimed to have contemporary effectiveness by rigorously protecting speech.[14]
Yet the Connecticut Supreme Court's conclusion that sections 4 and 5 originally afforded expansive free speech rights is plainly refuted by its prior decisions in Cologne v. West-farms Associates, [15] and State v. McKee.[16] Tellingly, the Linares Court only considered Colognes, dissenting opinion and its characterization of the state constitution as playing an independently vital role in safeguarding freedom of speech.[17] In addition, the Linares Court only considered McKee's general discussion of the key role that free speech plays in a democratic society.[18] Unaccounted for is the Cologne Court's refusal to extend state constitutional free-speech protection to expressive activity occurring on private property and the sources of the Court's conclusion: the debates of the adopters of the 1818 Constitution, the language of sections 4 and 5, and the relationship of these provisions to each other. These sources revealed that the adopters viewed sections 4 and 5 as furnishing only qualified freedom of speech. According to the Cologne Court, the adopters deemed section 4's first clause, which protects the right to speak and write freely, to be limited by its second clause, which permits the speaker to be punished if she abuses that right.[19] Moreover, the Cologne Court indicated that the adopters viewed section 4 as limiting section 5's absolute bar on laws restricting freedom of speech or the press by providing that a person may be liable under statute or the common law for abusing such freedom.[20] Crucially, as the Court in Cologne pointed out, "a broader proposal which prohibited the molestation of any person for his opinions on any subject whatsoever was considered at the [constitutional] convention but rejected."[21]
In addition to these omissions from its constitutional analysis, the Linares Court failed to address the McKee Court's construction of sections 4 and 5, which was the earliest and most thorough interpretation of these provisions as affording qualified rather than expansive free speech rights. This interpretation placed sections 4 and 5 within the overarching doctrine of civil liberty.[22] The McKee Court explained that this doctrine allowed "free expression of opinion on matters of church or State[, which is] essential to the successful operation of free government ... by the people,..."[23] But the Court in McKee also explained that the doctrine of civil liberty recognizes "the equal right of all to exercise gifts of property and...
