Rhode Island's unique constitutional history.

• Author: Goldberg, Maureen McKenna
• Position: Symposium: State High Court Judges on Making Their Hardest Decisions

Thank you very much for the generous introduction, and I am delighted to be here in Albany. I have to tell you that I accepted this invitation by e-mail from Mr. Skinner, and I do think it is the first invitation I have ever accepted via e-mail, so there is always a first in life, and I am delighted to be here.

I come from Rhode Island, our own state in the Union, and we bring with us a very unique history. In 1663, the State of Rhode Island was granted a charter by King Charles II, (1) and as a result of that we had tremendous independence from the British Crown right up to and through the American Revolution. We were not satisfied with that, however. Rhode Island declared its independence from Britain on May 4, 1776, two months before the remaining colonies. (2)

We have two signors of the Declaration of Independence (3)--a number that will not match the fellow to the left of me, I believe. (4) However, Rhode Island also refused to participate in the Constitutional Convention in Philadelphia or provide a signatory for the United States Constitution (5) unless and until the Bill of Rights was made a part of that Constitution.

So we're a tough little bunch down there.

(Laughter)

The colony was so impressed with its charter from King Charles II that we did not adopt a state constitution until 1842. (6) We remained a parliamentary form of government in which the legislature held all of the power. (7) It appointed the governor at one point in time, it certainly elected the judges in all of the courts, it exercised plenary power, and it exercised judicial power at times. (8) And there was a clause when we finally adopted the constitution, the clause that good old King Charles included in his charter, that all powers that were not specifically assigned remained with the General Assembly. (9)

In 1841 and 1842, an Irishman by the name of Thomas Wilson Dorr led the Dorr Rebellion, in which those who were not granted the franchise, could not participate in the government, and had no constitution, rebelled. (10) It was not successful except that it did lead within two years to the adoption of the first constitution in Rhode Island, which became effective in May 1843. (11)

Again, as I indicated, however, the General Assembly, the legislature, had the ultimate authority over all things in our state, and that remained in force until 2005. (12)

One of the cases that we decided as a court in 1999 reaffirmed all of what I have just explained to you, (13) and it was not a popular decision, I can tell you.

The Supreme Court of Rhode Island is a constitutional court. (14) We consist of five members, the chief justice and four associate justices. (15) One of our responsibilities under the constitution is to issue advisory opinions. The constitution provides that the justices will render their opinion on a question of law whenever propounded by the governor or either chamber of the legislature. (16) That is a concept that certainly flies in the face of the case or controversy doctrine, (17) a concept all of you hopefully have learned while you are here in Albany, and I am sure you have.

It is not a case or controversy; it is an advisory opinion. It is a signed opinion; each of us signs our names to it. It is not supposed to have any precedential value, but let me tell you, you know it does. It certainly does.

And we have been required I think ten times since I joined the court in 1997, eight or nine times I guess, to render advisory opinions to either the governor or either house of the General Assembly.

These, in my opinion, relate to the structure of our government, to the very organic foundations of Rhode Island and its thirty-nine cities and towns. And they are the tough calls.

In 1999, we were asked whether the Ethics Commission--we didn't have an ethics commission until the constitution was amended in 1986 (18)--could promulgate a regulation that basically altered the constitution. (19) It deprived the members of the General Assembly on ethics grounds from exercising power that had been reserved to the General Assembly in the constitution, specifically the appointment to and participation on state boards and commissions. (20)

Now, that is a lot of power if you know anything about state government...