Which Constitution?

Christia M. Sullins*

A supermajority of state supreme courts interpret their constitutions using originalism.¹ Of the original thirteen colonies, all but Massachusetts have either reratified their constitutions in whole or adopted new constitutions but retained provisions appearing in older constitutions.² Thirty states have adopted a constitution other than their original constitutions and have retained provisions from previous constitutions without material change.³ Given these facts, the question for an originalist state court is, when interpreting a provision in its constitution that has an equivalent provision in a previous constitution, which original meaning governs? This Note argues that originalist courts should presume that the provision’s original, original meaning governs unless there is evidence that the people intended to change its meaning when adopting the new constitution. State supreme courts that have addressed this issue have largely chosen this original, original meaning approach. This approach also lends greater clarity to courts and constitution drafters, produces more stability in the law, and has its foundation in the common law.

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* J.D. Candidate, Notre Dame Law School, 2027. I am grateful to Professor Nicole Garnett of Notre Dame Law School and Professor Jason Mazzone of the University of Illinois for their helpful feedback and critiques. Additionally, I am grateful for the efforts of the Notre Dame Law Review in making this Note presentable. Finally, I would like to thank my husband, Nik, for being my support and soundboard throughout the writing process. All errors are my own.

1 See Jeremy M. Christiansen, Originalism: The Primary Canon of State Constitutional Interpretation, 15 GEO. J.L. & PUB. POL’Y 341, 345–57 (2017) (discussing state cases from the antebellum era to 2016 to show that a supermajority of state courts has continuously employed originalism to interpret their constitutions). According to Christiansen, thirty-eight of the fifty states employ originalism as the rule of interpretation. Id. at 357.

2 See infra note 3 (showing the original and current constitutions of states including the twelve original colonies that have adopted new constitutions: New Hampshire, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia).

3 Compare ALA. CONST. of 1819, with ALA. CONST.; ARK. CONST. of 1836, with ARK. CONST.; CAL. CONST. of 1849, with CAL. CONST.; CONN. CONST. of 1818, with CONN. CONST.; DEL. CONST. of 1776, with DEL. CONST.; FLA. CONST. of 1838, with FLA. CONST.; GA. CONST. of 1777, with GA. CONST.; ILL. CONST. of 1818, with ILL. CONST.; IND. CONST. of 1816, with IND. CONST.; IOWA CONST. of 1846, with IOWA CONST.; KY. CONST. of 1792, with KY. CONST.; LA. CONST. of 1812, with LA. CONST.; MD. CONST. of 1776, with MD. CONST.; MICH. CONST. of 1835, with MICH. CONST.; MISS. CONST. of 1817, with MISS. CONST.; MO. CONST. of 1820, with MO. CONST.; MONT. CONST. of 1889, with MONT. CONST.; NEB. CONST. of 1867, with NEB. CONST.; N.H. CONST. of 1776, with N.H. CONST.; N.J. CONST. of 1776, with N.J. CONST.; N.Y. CONST. of 1777, with N.Y. CONST.; N.C. CONST. of 1776, with N.C. CONST.; OHIO CONST. of 1802, with OHIO CONST.; PA. CONST. of 1776, with PA. CONST.; R.I. CONST. of 1842, with R.I. CONST.; S.C. CONST. of 1776, with S.C. CONST.; TENN. CONST. of 1796, with TENN. CONST.; TEX. CONST. of 1836, with TEX. CONST.; VA. CONST. of 1776, with VA. CONST.; W. VA. CONST. of 1863, with W. VA. CONST.