Steady Habits in the Constitution State: Connecticut's Inequitable System of Representation, 1639–1965

Abstract

In the spring of 1959, with the approval of the General Assembly and the signature of Governor Abraham Ribicoff, Connecticut officially proclaimed itself the “Constitution State.” The nickname, later emblazoned on license plates from Greenwich to the Quiet Corner, represented a claim on the state's place in constitutional history. Connecticut, the birthplace of what sympathetic historians and proud state residents claim was the Western Hemisphere's first written constitution, congratulated itself for helping develop a system of government that changed the world.1Only six years later, the federal courts found Connecticut's constitution guilty of “invidious discrimination” against the state's residents and forced the “Constitution State” to completely rework its approach to political representation at a mandated and long overdue constitutional convention.2 Generations of failed attempts at reform had left Connecticut's legislature under minority rule, with the state's many small towns using their guarantee of equal representation in the state's General Assembly to overwhelm the political and legislative power of much bigger cities and towns. Despite its proud history, Connecticut was an example of constitutional failure and political inequality.3 How did Connecticut's constitution become so outdated and its system of representation so unequal, and what does this history reveal about the potential fallibility of constitutional government?From the Connecticut constitution's first iteration in 1639 to its repudiation by the federal judiciary in 1965, entrenched power, unforeseen societal change, and partisan incentives caused the state's founding document to become increasingly discriminatory against the state's population centers. Over centuries, Connecticut's struggle to reform its inequitable system of representation demonstrated how politics and partisanship can keep even the most outdated constitutional provisions firmly in place.Extensive literature has shown that state constitutions are more readily reformed than the United States Constitution. According to the legal historian Lawrence Friedman, state constitutions “have tended, on the whole, to be less durable,” receiving thousands of amendments throughout their history, compared to just twenty-seven for the United States Constitution.4 As Michael Besso wrote in a 2005 article published in The Journal of Politics, “the procedural burden for amendment of the federal constitution is significantly greater than the comparative burdens in states,” making state constitutions easier to change.5Despite this greater level of flexibility, the high bar for revising even state constitutions, combined with the forces of entrenched political power, has at times protected outdated and unequal political structures. As Friedman wrote in his classic text A History of American Law, “old rules of law and old legal institutions stay alive when they still have a purpose.”6 In the case of Connecticut's town-based system of representation, the old rules of law served a purpose for the dominant political faction, which then used its disproportionate power and the rigidity of the constitutional system to maintain discriminatory and archaic institutions and oppress rival constituencies. The story of Connecticut's constitution over three centuries demonstrates the problematic durability of written constitutions. Although written constitutions are fundamental to most modern systems of government, their inflexibility can also block crucial change, lock in enduring inequality, and cause potentially dangerous political strife.In the spring of 1638, the leading men of three Connecticut towns—Windsor, Hartford, and Wethersfield—sowed the seeds of future discord when they drafted one of the Western Hemisphere's first written constitutions. In this document, referred to as “The Fundamental Orders,” Connecticut's founders made a crucial and fateful choice: they established equal town representation in the colony's new legislature. “It is Ordered, sentenced, and decreed,” the Fundamental Orders declared, “that Windsor, Hartford, and Wethersfield shall have power, each Town, to send four of their Freemen as their deputies to every General Court.”7 With this decision to establish equal representation for municipalities rather than people, the founders of Connecticut unwittingly laid the foundation for their state's three century-long crisis of political inequality.The Connecticut Charter of 1662 further formalized this practice of equal town representation. In 1660, after Charles II assumed the throne in England, the new king negotiated with the Connecticut Colony to produce a charter that would cement the status of its government under the monarchy. The charter, which the king signed in 1662, continued the government set up by the Fundamental Orders, but with the royal stamp of approval.8 Much like the Fundamental Orders of 1639, this document provided for a legislature of “assistants” “not exceeding Two Persons from each Place, Town, or City.”9 By outlining this system in the state's supreme legal document, Connecticut's colonial political leaders embedded the principle of equal town representation in the heart of their government.The decision to grant each town equal representation in the chartered legislature was not a political choice or an ideological stand. Connecticut's founders likely derived this decision from the structure of the March Commission, which governed Connecticut from 1636 to 1637 while Connecticut negotiated its relationship with the Massachusetts Bay Colony. The March Commission consisted of eight local magistrates: two each from Windsor, Hartford, Wethersfield, and the northern town of Springfield, which later left the Connecticut colony.10 Giving each town the same number of representatives caused no grave injustice, because each of Connecticut's original towns had similarly small populations. Finally, the decision to limit representation at two per town probably reflected the repeated requests of town leaders to reduce the number of representatives in order to save money.11Equal town representation, while uncontroversial in the 1600s, contradicted a principle expressed elsewhere in the state's founding documents: People, not towns, were the fundamental unit of politics in Connecticut. “We the Inhabitants and Residents of Windsor, Hartford and Wethersfield,” the Fundamental Orders proclaimed, “do therefore associate and conjoin ourselves to be as one Public State or Commonwealth.”12 Reverend Thomas Hooker, a leading figure in Connecticut's founding, similarly emphasized the centrality of “the people” to the colony's new government. In a famous 1638 sermon before Connecticut's inaugural General Court, Hooker declared, “The foundation of authority is laid, firstly, in the free consent of the people. . . . The choice of public magistrates belongs unto the people, by God's own allowance.”13 While Hooker's address and the text of the Fundamental Orders indicated that Connecticut's government should be based on the principle of political equality between people, the equal town representation system instead granted political equality to towns. This misalignment of law and values would become a key point of contention during later debates about the apportionment rules for the Connecticut General Assembly.The process by which the people of Windsor, Hartford, and Wethersfield created the state of Connecticut differed from the way in which Connecticut's older sibling to the north, Massachusetts, had been established years earlier. Whereas the inhabitants of Connecticut's first three towns came together to “conjoin” themselves “as one Public State,” the Commonwealth of Massachusetts instead grew out of the Massachusetts Bay Company, and the towns of Massachusetts were each created in turn by this higher, original body.14 The precedent and proximity of Massachusetts, with its corporate town-state relationship, may have contributed to the persistent myth that Connecticut evolved from its towns, three of which had preceded the state, rather than the people, who the Fundamental Orders cited as Connecticut's true creators.In addition to establishing the people as Connecticut's basic political unit, the Fundamental Orders explicitly suggested that population should be considered when determining the representation given to new towns in the future. The Fundamental Orders stated, “Whatsoever other Town shall be hereafter added to this Jurisdiction, they shall send so many deputies as the Court shall judge meet a reasonable proportion to the number of Freemen that are in the said Towns being to be attended therein.”15 This gesture towards proportional representation never amounted to anything in the decades after the signing of the Fundamental Orders, because the similar populations of Connecticut's first collection of towns made it mostly irrelevant. The language requiring that representation be based on population then disappeared when the Charter of 1662 guaranteed two representatives to each town.Through the American Revolution and beyond, each new town in Connecticut was treated as if it were a new shareholder with equal voting rights on a corporate board. Despite the fact that equal town representation actually contradicted Connecticut's original theory of itself as a state created by its people, the practice continued even as the colony became a state. The system's longevity owed in large part to Connecticut's early leaders’ decision to include equal town representation, without much thought to its long-term consequences, in the state's founding documents. Thus, constitutional inertia exerted its power on Connecticut.Even as dozens of new towns incorporated and earned representation during the seventeenth and eighteenth centuries, Connecticut was one of only two states (the other being Rhode Island) that did not write and ratify a constitution during the revolutionary era. Instead, Connecticut allowed its constitutional charter—and its system of equal town representation—to persist into the nineteenth century.16 In the 1780s, Connecticut modified its town representation system slightly, establishing that towns created after the revolution would receive one representative as opposed to two. Notes from General Assembly business in 1786 and a letter published in the Connecticut Courant and Weekly Intelligencer in 1787 show that this decision was mostly about saving money and preventing the House of Representatives from becoming “a cumbersome over-grown body.” (At least one legislator, however, argued that the entire system of equal town representation needed reform because “the present mode of representation is very unequal.”)17 During this period, Connecticut's larger cities and towns were somewhat disadvantaged by the equal town representation system, though they still managed to exert significant influence over state politics through their power on the Council, the archaic second chamber of the Connecticut legislature which was a bulwark of Congregationalism, federalism, and “aristocratic” urban power in the state.18 The power-balancing effect of the Council, Connecticut's fairly equal population distribution, and simple political inertia allowed the state's process of legislative apportionment to continue into the early nineteenth century in much the same way as had been outlined in Connecticut's founding documents.19In 1817 and 1818, a coalition of Tolerationists and Republicans swept the long-governing Federalists out of office, and Connecticut's new General Assembly quickly called for a constitutional convention. The coalition sought to disestablish the Congregational church, expand the franchise, and create an independent judiciary. The Tolerationists and Democratic-Republicans’ electoral victory brought Connecticut its first significant opportunity for constitutional reform. Yet the delegate selection process for the constitutional convention demonstrated the self-perpetuating nature of political power: every town sent the same number of delegates to the convention as they had representatives. Thus, each town founded before 1780 sent two delegates, while the newer towns sent one each.20 Any controversy over this decision is not apparent in the historical record, possibly due to tradition and the fact that the towns were of reasonably similar sizes.Though the Constitutional Convention of 1818 focused primarily on debates over religious toleration, a few delegates called attention to the issue of equal representation. When the convention's agenda turned to Article III, Section III of the constitution, which outlined the structure of the legislature, several delegates moved to amend the system of equal town representation so that larger towns would get more seats in the General Assembly. According to an account of the convention by the Connecticut Courant, Robert Fairchild of Stratford proposed that “each town containing 2,500 persons or more, shall be entitled to two Representatives, and every town, containing a lesser number, shall be entitled to one Representative only, the population to be ascertained by the census next preceding any election.”21 James Stevens, a Tolerationist from Stamford, immediately moved to change the threshold to 4,000. With little recorded debate, however, both proposals were brought to a vote and rejected.22The somewhat equal geographic distribution of Connecticut's population during this era weakened the arguments of reformers seeking to change Connecticut's system of representation. Melbert Brinckerhoff Cary, a Democratic politician who wrote a historical account of the Connecticut constitution that was published in 1900, explained that in 1818, “Connecticut was made up entirely of country towns and the difference in population was comparatively unimportant.”23 At the time of the 1820 census, 102 of the 122 towns had between one and four thousand people, and no town had more than 8,327 people or fewer than 731. Though the population of Connecticut in 1818 was more unequally distributed than it was in 1639 or 1662, at the time of the 1818 Constitutional Convention, equal town representation did not yet severely disadvantage urban residents relative to their more rural neighbors.Following the defeat of Fairchild and Stevens’ proposals to enhance the power of larger towns, the 1818 Convention delegates continued to discuss the issue of representation, revealing a philosophical rift between advocates of equal representation and supporters of proportional representation. James Lanman, a Democratic-Republican from Norwich, spoke first. Lanman “declared himself opposed to doing any thing at all” to change the system of representation. He argued that “the people had not sent” the delegates to the convention; “the towns had sent them.” “Representation right was secured to the Towns,” Lanman claimed. Lanman, citing a belief that towns had corporate rights under state government, questioned his colleagues: “Would gentlemen destroy corporate rights?”24 “As the law now stands,” Lanman argued, “the right of franchise, was predicated on property,” a system “agreeable to the personal rights of the people, and the interest of the inhabitants.” Lanman believed that towns and property, not people, should be the basic political units in Connecticut. Additionally, he argued that the convention did not have the power to change the system of apportionment because the towns were entitled to equal representation. “It was vested in them from the beginning, and the Convention could not touch it—the spirit of the time would not admit of its being touched,” he declared.25Former Governor John Treadwell, a Federalist from Farmington, believed, by contrast, that Connecticut should operate under a system of representation based on population. Treadwell “doubted very much the correctness of [Lanman's] opinion.” He argued that the delegates “were representatives of the freemen, and not of the towns; and justice required the representation to be regulated by the census.” Treadwell believed that “the most populous towns should be entitled to the greatest number of Representatives.” While Treadwell acknowledged that complete equality in representation “was impossible,” because the number of people and legislative districts did not divide perfectly, he nonetheless argued that Connecticut should “fix on a proportion” so that the people could “have a full representation.”26General Nathaniel Terry, a leading Hartford Federalist, went further than Treadwell, arguing in favor of a theory of representation that would generations later be known as “one person, one vote.” While Terry admitted that his speech “might be unavailing” to the small-town delegations opposed to reform, he felt obligated “to advocate correct principles.” “The theory of this government is a democracy,” Terry declared. “A representative democracy,” in fact, which “is a form of government derived from the people.” Terry asked his fellow delegates to consider the first democracies, in which every citizen convened to make decisions: “If the people meet as originally, to transact their business, would there not be an equality of their votes? Would not each vote count, and the vote of one individual be equal to that of another? If so, ought we not then, to follow the same rule?” Terry warned of a future Connecticut when population imbalances between towns might lead to extreme inequalities of representation: The time will come, when certain towns in the state will have fifteen thousand inhabitants, and shall no provision be made for such a state of things? We are sanctioning the very principle, which was the cause of the unequal representation in England—if you sanction this principle, you break down the land marks of democracy, and you destroy the foundations of democratic government.27Terry believed the 1818 convention presented an opportunity to save Connecticut from the “evil” of continuing political inequality, and he urged his fellow delegates to consider the fundamental democratic principles of Connecticut's government during this window for change.28Despite Terry's forceful case for population-based representation, political opposition from the smaller towns thwarted reform, and the “land of steady habits” kept its 180-year-old system of legislative apportionment. Article III of the Connecticut Constitution of 1818 stated, “The number of Representatives from each town shall be the same as at present practiced and allowed. In case a new town shall hereafter be incorporated, such new town shall be entitled to one Representative only.”29 Ultimately, too many delegates, especially those from rural areas, agreed with Lanman's belief that equal representation “was vested in [the towns] from the beginning, and the Convention could not touch it.” U.S. Congressman Timothy Pitkin, a Federalist from Farmington, exemplified the common sentiment that it would be “inexpedient” to change the system of representation. “The representation of Connecticut has always been by towns, and I would keep it so,” said Pitkin.30 The small-town delegates agreed that reform would be an objectionable overruling of tradition and far too disruptive, not to mention detrimental to their political interests, and their disproportionate majority prevailed.Connecticut's legislative apportionment system became increasingly imbalanced after 1818, as societal changes began to concentrate more and more residents in urban areas. The growth of industry and urban commerce in the state, spurred on by the passage of Connecticut's Joint Stock Act in 1837, caused “economic changes of great importance,” according to a historical account in the New York Times. As private corporations spread rapidly, “a total rearrangement of the people came about,” according to the Times. “The exodus from the farm to the cities began,” and immigrants, looking for manufacturing work, swelled the population of Connecticut's manufacturing centers. As the cities grew, some small towns shrank, while others experienced minimal to no growth. On net, these population changes ended the more balanced population distribution of Connecticut's past. In 1800, 9 percent of the state's population lived in cities; in 1850, twenty percent did.31 Efforts to expand the franchise during this time, including the end of the property requirement in 1855 and the end of racial qualifications after the Civil War, also increased the number of voters in Connecticut's cities.32By 1850, the disparities in representation between big and small population centers had become glaring. Killingworth, a farming community with a population of 1,107, had the same representation of two legislators as New Haven, which had a population of 20,345. Hartford, a growing industrial city with a population of 13,555, held the same legislative power in the state House of Representatives as Union, a town in northeastern Connecticut with a population of just 728.33 As Connecticut's cities grew, the system of apportionment outlined by the Constitution of 1818 became increasingly out of step with any conception of political equality among individual persons.Calls to reform the system of equal town representation intensified as Connecticut's apportionment system grew more clearly contrary to democratic principles. On April 29, 1850, the Hartford Courant called for a constitutional convention to remedy the “inequality in the mode of representation which the present Instrument of Government authorizes.” The Courant wrote: We think that no candid man, who views our system of representation rightly, and who is not prejudiced by the power which it improperly flings into the small towns, will continue to advocate its preservation, when they see the injustice and inequality of its nature, and its anti-republican tendency.34The existing system, the Courant argued, had only survived the 1818 convention because the delegates had been afraid to risk the defeat of the rest of that constitution's reforms, as the small towns might have voted down the entire document “if their unequal representation were taken from them.” The Courant protested that, “the existing system in this state, is a representation of corporations, not of the people.”35Reforming the unjust and unrepresentative legislature, however, proved to be extremely difficult. Though the General Assembly used the legislative amendment process to change the 1818 Constitution a number of times during the nineteenth century, Connecticut's small towns, empowered by their overrepresentation in the legislature, always blocked constitutional reform to the system of legislative apportionment. Hoping for a major reckoning over the state's system of representation, members of the General Assembly attempted to convene a constitutional convention in 1848, 1849, 1855, and 1867. Each time, their efforts failed. In the early 1870s, advocates won the support of Governor Charles Ingersoll, a New Havener who served from 1873 to 1877. In 1873, however, despite the governor's backing, the House rejected a bill calling for a constitutional convention by a vote of 140 to 69, with the small towns defeating it. Representatives from Fairfield, Hartford and New Haven counties, the most populous in the state, voted 52 to 42 in favor, but the rest of the state's legislators voted 98 to 17 against.36 The bill failed again in 1875. Connecticut, always characterized by its dozens of small and medium-sized towns, maintained a system benefitting those rural municipalities. Unrepresentative power, granted by the constitution, refused to restrain itself.In the mid-1870s, reformers did manage to make some small advances. According to Melbert Cary's Connecticut Constitution, “After the results of the census of 1870 were known, the injustice of the system had become so glaring, that there was a movement in many parts of the state to accomplish the much-needed reform.” Advocates formed the Constitutional Reform Association, a nonpartisan organization dedicated to changing Connecticut's system of representation. According to Cary, “many of the leading members of both political parties were active members,” and the group held meetings throughout the state and “did everything possible to induce the legislature to call a constitutional convention.” In 1874, the legislature responded to this pressure—albeit weakly—by adopting a constitutional amendment guaranteeing every town of at least 5,000 people two representatives in the state House. In 1876, the legislature built on this reform by passing another amendment that said that no new town after that point could have any representation at all in the General Assembly unless it had at least 2,500 residents. These amendments helped to rectify some of the most preposterous inequalities caused by the legislative apportionment system, such as the fact that Bridgeport, a relatively new but booming town with a population of more than 20,000, had only one representative, while many towns with fewer than 2,000 residents had two representatives.37The issues with Connecticut's system of representation went far beyond the state House of Representatives. Connecticut's state Senate was also wildly unrepresentative of the state's population. The 1818 constitution had merely mandated that there be twelve senators, with no mention of districts or proportionality. In 1828, a constitutional amendment divided the state into senatorial districts—senators had previously been elected at-large—and increased the number of senators from twelve to a larger number, ultimately set by the legislature at twenty-one in 1831. The 1828 amendment specified that the senate districts should be determined with “regard being had to the population,” and that the General Assembly “shall have the power to alter” the districts “to preserve a proper equality between said districts, in respect to the number of inhabitants therein.”38 According to Wesley Horton's The Connecticut State Constitution, however, “while some general attempt was initially made” to make the senatorial districts proportional, the “district lines tended to become fossilized.” A requirement in the 1828 amendment that each of the state's eight counties receive at least two senators helped to entrench the inequality between districts that later developed over the course of the nineteenth century. The legislature's neglect of state Senate redistricting meant that by the 1890s, Connecticut's largest state senate district had ten times the population of its smallest senate district.39Connecticut's issues with inequitable representation went beyond the General Assembly, affecting elections for both federal and statewide offices as well. Congressional districts, first used in Connecticut in 1838, were not redistricted between 1842 and 1900, meaning the state's congressional districts continued to be apportioned using the 1840 census. At the beginning of this lapse in redistricting, each district had between 63,000 and 90,000 residents. By 1890, however, Connecticut's second congressional district had 248,582 residents, while the third congressional district had only 121,792, less than half as many. This disparity was the largest in the country; South Carolina, Mississippi, and Louisiana all had significant population differences between several of their districts, but none approached this two-to-one ratio.40Additionally, prior to the ratification of the seventeenth amendment to the federal Constitution in 1913, the Connecticut General Assembly elected the state's United States senators, giving the system of equal town representation in the legislature further opportunities to impede the will of the majority or plurality of voters. According to the New York Times, Democrats outvoted Republicans in six out of ten statewide elections between 1880 and 1900.41 During this period, the legislature remained overwhelmingly Republican and therefore retained the power to elect Connecticut's senators. In 1866, 1872, 1882, and 1892, Connecticut's legislature elected Republican United States senators, even though the state's voters elected Democratic governors. Despite consistent Democratic strength in statewide elections, only Republicans represented Connecticut in the United States Senate between 1881 and the end of the century.”42During this era, the rules for gubernatorial elections gave the Republican-dominated state legislature yet another way to exercise its disproportionate power. Per the 1662 Charter and then the 1818 Constitution, if no candidate received an absolute majority in an election for statewide office, the General Assembly chose between the top two vote-getters.43 Following the elections of 1871, 1878, 1884, 1886, and 1888, the legislature exercised this power to put Republican governors in office who had not received majorities or whose victories were disputed. In three straight gubernatorial elections during the 1880s, the Democratic candidate received more votes on election day, but the Republican-controlled General Assembly selected his Republican opponent as governor.44The election of 1890 proved even more chaotic and undemocratic than those in preceding years. After the official election results showed that Democratic candidate Judge Luzon B. Morris had received 67,662 votes, 26 more than he needed for an election-winning majority, the Republican-controlled House of Representatives refused to certify Morris's victory, citing what they claimed were unfairly disqualified Prohibition ticket votes that, if counted, would deny Morris the 50 percent of the vote that he needed to win the election outright. The Republican candidate, General Samuel E. Merwin, had received 63,976 votes, more than 3,600 (about 2.8 percent) fewer than Morris. With the Democratic-controlled Senate and Republican-controlled House unable to agree on which candidate should serve as the state's govern