Since the readers of SLoG are likely to be more interested in state constitutions than the average person (much to my chagrin), I wanted to flag a forthcoming piece of mine, on the Uses of Convention History in State Constitutional Law.
A few years ago, while writing one of my pieces on state constitutional eminent domain law, the wonderful librarians at the University of Virginia School of Law routed me a manuscript version of a source I'd requested: the records of the Arizona constitutional convention of 1910. As I flipped through the pages, I discovered in dozens of spots the typewritten phrase: “(Speech by [Delegate] sent to him, omitted here).” It seemed that the speakers were editing and then furnishing their remarks after-the-fact to the convention reporter for later inclusion in the official report. In that moment, since my piece was discussing and relying on a substantial amount of convention material, the seeds of worry were planted: wait, do these records bear any relationship to what delegates actually heard or expressed? I stuffed those reservations down to finish the article, but I wanted to return to the question.
In my essay, which is forthcoming in the Wisconsin Law Review as a part of a symposium put on by the fabulous State Democracy Research Initiative, I begin to explore two questions: (1) knowing that scholars have criticized courts’ reliance on shaky historical evidence to interpret the federal Constitution, to what extent do the same sorts of problems plague the records of state constitutional conventions in the states? And (2) when did state courts start relying on convention evidence in state constitutional interpretation, and how has that reliance changed over time?
The answers to both questions turned out to be fascinating, and this essay only scratches the surface. It is full of fabulous esoterica that scholars of the state and local just have to love. For instance, unpaid Washington court reporters destroyed their own notes of the convention when the state failed to pay them (h/t Hugh Spitzer). A delegate to the Ohio Convention in 1912 lamented that he could “never pass a tree without feeling ashamed” that it might be cut down to publish deliberative proceedings, which he viewed as an utter waste of state funds. And the records of Nebraska's 1875 convention were last seen in a cracker box in the arms of two janitors, leading the Nebraska Supreme Court to summarize the fate of its constitutional documents as follows: “Sic transit gloria mundi [so passes away the glory of the world]—in a cracker box, somewhere.”
Great anecdotes aside, the essay does raise serious and interesting questions. Courts rely on their convention evidence a great deal in interpreting state constitutions, but not all of those convention records are equal in their reliability or comprehensiveness. The essay points out many examples where records were lost, edited, or reconstructed in ways that seem important in assessing them. Here is a striking example: as work by Baltimore lawyer John Connolly has shown, the official convention records in Maryland were compiled from newspaper coverage in the Baltimore Sun, but that paper's coverage differed from another newspaper's simultaneous coverage in multiple substantive ways--including the Sun's apparent minimization of racist remarks made by delegates in discussing the intent or aim of provisions. It is not always clear whether judges are aware of the sources' shortcomings.
As I point out, there are three reasons that it is important to consider these sources and their role in interpretation now: (1) there is increasing interest in originalism outside the Supreme Court (and even in state forums), (2) the Supreme Court's resort to "history" and "tradition" in constitutional contexts may lead to efforts to understand rights and their contours in state constitutional documents, and (3) recent Supreme Court cases are making it likely that members of progressive circles will turn to state constitutions rather than the federal one to vindicate rights. There are reasons to be concerned about state convention evidence, but it also poses interesting possibilities. For instance, should we think of state convention evidence more like legislative history or constitutional history (revealing how we should think of state constitutions themselves)? How can convention evidence help to identify forgotten ways that state constitutions influenced each other? (Until doing research for this paper, I had no idea that in the nineteenth century, multiple state supreme courts thought that where a constitutional provision’s antecedent had been interpreted by the antecedent state’s courts, that interpretation was presumptively binding on them unless rebutted by evidence of contrary intent! Hoping to dig into this further, if you know more about it than I do.)
All in all (and I'm biased), I think the essay is an interesting read, albeit one that raises many more questions than it answers. I hope to take some of these questions about historical evidence and state constitutions up in future work, and I hope others will be motivated, too.