Guest Essayist: Anthony Sanders

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Minnesota has a proud constitutional tradition of protecting individual liberties. This short essay provides an overview of its constitutional history, and a few examples of the rights that the state constitution protects.

Northwest Ordinance

Minnesota’s constitutional roots go all the way back to before the adoption of the U.S. Constitution.

As Minnesotans will tell you, the state is the source of the Mississippi river. The land east of the river was recognized as part of the United States in 1783, after the United States won the Revolutionary War. A few years later in 1787, Congress, acting under the Articles of Confederation, drafted the Northwest Ordinance. The Ordinance included a set of requirements for new states to be formed out of the Northwest Territory, the area which today includes Minnesota east of the Mississippi, as well as Ohio, Indiana, Illinois, Michigan, and Wisconsin. It required new states to guarantee many individual liberties, including freedom of religion, freedom of navigation on public waterways, and the prohibition of slavery.

The land west of the Mississippi was not claimed by the United States until 1803 as part of the Louisiana Purchase.

Constitutional Convention

After the rest of the old Northwest Territory and some of the Louisiana Purchase had become states, it was Minnesota’s turn. The Minnesota Territory was formed by Congress in 1849. Further legislation in 1857 allowed for the formation of a state, while narrowing the territory’s size in the process (shaving off the westernmost areas, which eventually became part of both North and South Dakota).

The residents of the territory then came together to form a constitution, and planned a convention for the summer of 1857. Tensions between Democrats and members of the new Republican Party were high. It did not help that this was the year of the infamous slavery case Dred Scott v. Samford and the Supreme Court’s ruling that blacks are not citizens, and only four years before the eventual outbreak of the Civil War. Scott himself had actually resided in Minnesota while his owner was stationed at Fort Snelling, an Army outpost at the confluence of the Minnesota and Mississippi rivers.

On the first day of the constitutional convention, July 13, 1857, all elected delegates sat together to open the proceedings. And that was the only time they did so. The bad blood between the parties boiled over and the rest of the convention was really two “conventions” where Democratic and Republican delegates held parallel sessions. In these they each drafted and debated a constitution for the state, denigrating the members in the other group in the process.

Newspapers continually published drafts of a constitution that each party created as they moved along. This created a dynamic where for several weeks each “convention” could follow and copy the other. Thus, despite their differences, when the parties published their separate final drafts, it turned out that the versions were very similar. Finally, each side appointed a five-member delegation to hammer out a final copy.

The resulting constitution contained many provisions drawn from the Northwest Ordinance, including strong protections for individual liberties. As with most other state constitutions, its bill of rights protected freedom of worship, freedom of the press, property rights, and due process. It also prohibited unreasonable searches and seizures. The constitution created a House and Senate, known as a bicameral legislative system, a governor and other elected officials (including a secretary of state and auditor), an elected judiciary, a quasi-independent state university (the University of Minnesota, later sometimes called a “constitutional agency”), and a guaranteed system of public schools.

Amendments Since 1857

Unlike many other states, Minnesota has had only the one constitution in its history, although it has been amended over one hundred times, and substantially reorganized once. The numerous amendments—which are written by the legislature but have to be voted on by the citizens—are too many to list here, but the author will note a couple.

In 1881, the state adopted a ban on “special legislation,” which is legislation that concerns a particular person or class of people. The ban’s language was then amended several times over the ensuing decades. Advocates rightfully noted that the legislature was corruptly being used to grant special favors to individuals and specific corporations.

Another amendment, unique to Minnesota, was a protection on the right to farm and peddle. Adopted in 1906, it reads “[a]ny person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” The clause has been interpreted narrowly by the state courts, but its text promises a great deal of protection to family farmers and others, such as home bakers.

Redraft in 1974

In 1974, after years of study, the legislature proposed, and the voters adopted, a large reorganization of the state constitution. About a third of it was eliminated, largely where the text was redundant. However, unless stated otherwise, the changes were not meant to alter the meaning of the constitution. After the amendments many of the old provisions were found in new articles and clauses, and anyone studying caselaw or text from before 1974 must keep this in mind.

Jurisprudence

The interpretation of its constitution in Minnesota’s courts has varied over the years, as with any state. In its first few decades the state supreme court, for example, limited the power of cities by invalidating many protectionist local licenses. That approach, however, fell out of favor in the twentieth century.

Many provisions in the Minnesota Constitution mirror those in the U.S. Constitution. Minnesota has at times followed the jurisprudence of the U.S. Supreme Court on interpreting this parallel language, but in recent decades the state supreme court has been more willing to distinguish itself in protecting certain individual liberties. One prominent example has been in search and seizure cases, where the court at times has rejected allowing the police to conduct searches that the U.S. Supreme Court would have upheld.

Anthony Sanders is a Senior Attorney at the Institute for Justice. He is the author of several articles on constitutional law and jurisprudence, including pieces appearing in the Iowa Law Review and American University Law Review.

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