William Mitchell Law Review

Publication Information

30 William Mitchell Law Review 241 (2003-2004)


There are several varieties of the “originalist” school of constitutional thought, but all subscribe in one degree or another to the belief that a constitutional clause should be interpreted according to its original meaning or the original intent of its authors. That original understanding or intent can be discerned from the text of the clause, the history of its drafting and ratification and, sometimes, early practices and court decisions interpreting that clause. It rightly has been called a “grand theory” because it is simple and clear, explains so much, and it has the almost irresistible attraction of being anchored firmly in history, a past illuminated by the writings and speeches of heroic figures -- the “founding fathers.” Like frontier settlers in the novels of O. E. Rölvaag, lawyers, legal scholars and jurists who attempt to interpret Minnesota's Constitution on the basis of its original understanding or the framers' intent encounter unexpected hardships, hazards, and deprivations. This article explores practical reasons why a strict originalist interpretation of the Minnesota Constitution has never taken hold, and probably never will. It does not address the worthiness of the originalist school of adjudication at all. It is both provoked and inspired by an essay published in these pages a year ago by Professor Russell Pannier on the decision of the Minnesota Supreme Court in the case of Abraham v. Hennepin County. There, the court held that an employee claiming retaliatory discharge under the state “whistleblower act” had a right to a jury trial under Article 1, section 4 of the Minnesota Constitution. Professor Pannier concluded that the Abraham court attempted to ride “originalist” and “non-originalist” horses in the same race; not mincing words, he found the court's reasoning “incoherent” and “internally inconsistent.” But there is another view of Abraham, that with it, the court boldly built a contemporary structure for the analysis of the jury right that is faithful to the democratic order and harmonious with this state's constitutional past.