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Constitutional Rights? Look at Some Wrongs.
Over time, particular courts often develop reputations, for better or for worse. For example, the 9th Circuit Court of Appeals has a reputation for being the most liberal of the federal appellate courts. The 4th Circuit has a reputation for being quite conservative. That’s what happens when a panel of justices uphold the constitutionality of a federal statute purporting to overrule the Supreme Court’s Miranda decision, as the 4th Circuit did a few years back.
What kind of reputation does our own Connecticut Supreme Court have? As a former law clerk on that court, I am obviously biased, but I believe that it deserves and enjoys a positive reputation. It has decided some very important cases and other courts across the country have adopted some of its precedents. If one looks back a few decades, however, our state’s high court has always been on the so-called “right” side of some important issues, at least as far as the U.S. Supreme Court is concerned. Here is my “top four” list of troublesome cases:
First Palko v. State of Connecticut, a 1937 case in which Justice Cardozo held that the double jeopardy provision of the Fifth Amendment was not “of the very essence of a scheme of ordered liberty” and, therefore, did not apply to the states through the Fourteenth Amendment. The U.S. Supreme Court affirmed our state Supreme Court, which had held that a statute permitting the state to appeal a conviction in a criminal case did not offend due process. (In the original trial, the defendant had been convicted of murder and sentenced to death). For the record Palko was overruled in Benton v. Maryland in 1969.
Second, Cantwell v. Connecticut , in which the U.S. Supreme Court in 1940 considered the constitutionality of a statute that prohibited members of religious groups from going door to door soliciting funds unless approved by the secretary of the public welfare council. The Connecticut high court upheld the statute as a constitutional effort to protect the public against fraud in the solicitation of funds and thus affirmed the conviction of several Jehovah’s Witness defendants under the statute. The nation’s high court disagreed, holding that the statute offended the First and Fourteenth Amendments.
Third, 1965’s Griswold v. Connecticut , my personal favorite, in which Justice Douglas invoked the “penumbras and emanations” of several amendments to the federal constitution to strike down, on “right of privacy” grounds, a Connecticut statute that made it a crime to dispense “any drug, medicinal article or instrument for the purpose of preventing contraception.” Connecticut’s high court had affirmed the conviction against a challenge that the statute violated the Fourteenth Amendment.
Fourth, Boddie v. Connecticut, a 1971 case in which Justice Harlan, recognizing the fundamental importance of the marriage relationship in our society, struck down on due-process grounds a Connecticut statute that effectively prevented indigent persons from filing for divorce because they could not afford the court filing fees. To be fair, this case came up through the federal courts, so it really doesn’t belong in this column. But it has “Connecticut” in the title, so what the heck. Also, Justice Black’s dissent makes for great reading. He wrote, “I believe the only way to steer this country towards its great destiny is to follow what our constitution says, not what judges think it should have said.” After 13 years of practice, I still struggle at times to discern the difference when one is expounding upon what is, after all a constitution .
Which court was truly right and which was wrong in these cases? An objective answer to that inherently subjective question is impossible. History, however, inevitably and unavoidably passes judgment on such questions. We’ll all just have to wait for history’s pronouncement.