The question of whether or not Minnesota should continue its century-and-a-half practice of electing judges is one with long historical roots. The Minnesota State Bar Association (MSBA) only narrowly approved a resolution for the state to move to a judicial appointment system, with 33 voting in favor of the resolution and 31 voting in favor of taking no position at the MSBA annual meeting in June. Hamline Law Professor Mary Jane Morrison, author of The Minnesota State Constitution, A Reference Guide, reports that this debate dates back 150 years to the time when Minnesota’s state constitution was being drafted.
In the ensuing century-and-a-half, scholars have been debating why the framers chose to endorse judicial elections. Morrison is overseeing a Hamline undergraduate political science student, Angelene Hennes, on a research project into the historical debates that influenced Minnesota's constitutional framers on this issue. The research will be used by Minnesota Women Lawyers to develop a program on the topic in early 2008, as part of the state's sesquicentennial celebration.
"By 1835 there already was a deeply entrenched view in American society that an elected judiciary was better for democracy," Morrison explains. "And between 1845 and 1912, all new states admitted to the Union had elected judiciaries. Some scholars thought this shift was due to a rise of populism, which was a follow-on development to Jacksonian democracy.
"By the 1950s, however, scholars were convinced that the preference of many states for judicial elections had been driven by an emotional reaction from citizens who felt judges had become part of an aristocracy. This perception shifted again in the 1970s when scholars began postulating that the shift to elections had been the work of lawyers who wanted to improve the perception of quality among the judiciary, in essence to professionalize the judiciary," she says.
These ongoing debates among scholars about why respective state constitutional framers chose, in large part, to require judicial elections reflect a larger ongoing debate regarding whether judicial elections enhance or harm freedom. Morrison said she hopes the research she and Hennes are conducting on the topic will lead to a lively presentation, perhaps featuring historical reenactments of the original debates. The presentation should be especially timely as Minnesota debates switching to a judicial appointment system with judges standing for retention elections or reviews.
Exploring Constitutionality of Dedicated Fund Clauses
Morrison also will apply her constitutional acumen to another sesquicentennial-related program at the 23rd Annual Policy Analysis Conference sponsored by the Citizens League on October 17, 2007 at the University of Minnesota, St. Paul campus. She will discuss issues around constitutionally dedicated funds, which allow state legislatures to allocate monies raised from a particular source - such as lottery ticket or license plate sales - to be earmarked for one specific purpose only. Morrison published an article on this topic in 2006 in the Minnesota Journal.
While the use of dedicated fund clauses seems to be relatively recent in Minnesota, Morrison says the funding technique dates back to the country's founding, when the federal government grudgingly provided land and/or cash to the new states for public schools.