dissenting. I am deeply troubled by the majority’s holding that General Statutes §§ 53a-12 and 53a-13,1 which shoulder the defendant with the burden of proof on the issue of sanity, pass state constitutional muster. I dissent because I believe that §§ 53a-12 and 53a-13, which make mental capacity an affirmative defense that must be proven by the defendant by a preponderance of the evidence, violate the due process clauses contained in the Connecticut constitution, article first, §§ 8 and 9. 2
I
Like the majority, I begin my analysis by reviewing federal constitutional law in order to put the state constitutional claim in perspective.3 Certainly, we would hold unconstitutional a statute that required the defendant to prove that he did not intend to commit the crime charged because intent is an element of the crime. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). It is impossible for me to discern any meaningful difference between the intent to commit a criminal act and sanity—both relate to an individual’s state of mind. This becomes crystal clear when we examine what must be established in order to succeed under an insanity defense. Under § 53a-13 (a), it is a defense to a prosecution “that the defendant, at *484the time he committed the proscribed act . . . lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” The essence of the defense is that mental disease or defect prevented the defendant from forming the intent necessary to commit the crime, because the defendant was either unable to appreciate the wrongfulness of his or her conduct or unable to control his or her conduct. Individuals who do not have the capacity or ability to understand the nature or effects of their actions cannot possess the mens rea or criminal intent necessary to commit a crime. Even Justice Rehnquist of the United States Supreme Court has conceded that “evidence relevant to insanity as defined by state law may also be relevant to whether the required mens rea was present . . . .” Id., 705-706. The defense negates intent, pure and simple; sanity is therefore an essential element of the crime.
Justice Brennan forcefully argued that sanity is an element of the state’s case in his dissent in Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976). “Like the state rule invalidated in Mullaney, which implied malice unless the accused negated it, the plea of insanity, whether or not the State chooses tp characterize it as an affirmative defense, relates to the accused’s state of mind, an essential element of the crime, and bears upon the appropriate form of punishment. Nor is it sufficient after Mullaney to say, as the Court did in Leland [v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952)], that a State may characterize the insanity defense as it chooses. We said m Mullaney that the requirement of [In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)] that the State prove all elements of the crime was one of substance, not limited to a State’s definition of the elements of the crime . . . .” (Internal quotation marks *485omitted.) Id., 880; see also State v. Hart, 221 Conn. 595, 616-17, 605 A.2d 1366 (1992) (Berdon, J., dissenting). Nevertheless, the majority of the United States Supreme Court implicitly affirmed a decision by the Delaware Supreme Court upholding, on the basis of Leland v. Oregon, supra, the constitutionality of a statute that placed the burden of proof of insanity on the defendant by a preponderance of the evidence. Rivera v. Delaware, supra, 878-79.
II
It is clear that through the lens of our own state constitution, once the issue of the defendant’s mental status is raised, due process requires that the state prove beyond a reasonable doubt that the defendant did not lack the capacity to commit the crime. Consequently, I would find that to the extent that §§ 53a-12 and 53a-13 place the burden of proof on the defendant, they violate due process of law under the state constitution. “It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992).
The majority concedes, as it must, that the due process clauses contained in the Connecticut constitution, article first, §§ 8 and 9, implicitly require the state to prove every element of the crime charged beyond a reasonable doubt. The majority predicates its conclusion that §§ 53a-12 and 53a-13 do not violate this basic tenet of constitutional law on the purported “analytic distinction between mental status as it relates to the insanity defense and mental status as it relates to intent to engage in criminal conduct.” Accordingly, it concludes that sanity is not an element of the state’s case, *486but an independent fact. I cannot accept the majority’s conclusion for several reasons. Not only does the insanity defense undermine the intent necessary to commit the crime, but sanity and intent are so interrelated that sanity necessarily becomes an element of the crime. In addition, a reasonable interpretation of our state constitution requires the state to prove the defendant’s sanity beyond a reasonable doubt, once the issue has been raised.
In State v. Geisler, supra, 684-86, we concluded that this court, “[i]n order to construe the contours of our state constitution and reach reasoned and principled results,” should employ various approaches for its construction.4 Four approaches—our state common law, state history, sister state precedent, and sociological considerations—are particularly germane in determining whether Connecticut’s due process clauses mandate that mental capacity is an element of the crime that the state must prove beyond a reasonable doubt.
In our analysis, we seek to construe article first, §§ 8 and 9, of the Connecticut constitution of 1965, which are derived from article first, §§ 9 and 10, of the Connecticut constitution of 1818.5 Given that the debates *487concerning the 1818 state constitution were of great significance when the constitution was amended in 1965, the historical approach to constitutional analysis requires us to ascertain the intent of the framers of the 1818 constitution.6 Unfortunately, unlike the constitutional convention of 1965, the proceedings of the constitutional convention of 1818 were not recorded. Although we have the benefit of newspaper accounts of the proceedings; W. Horton, “Annotated Debates of the 1818 Constitutional Convention,” 65 Conn. B.J. SI-3 (1991); the coverage of the debates was selective and virtually no reported debate exists concerning §§ 8 and 9 (numbered §§10 and 11 at the time of the debate). Id., SI-31-32, SI-86. Accordingly, in order to determine the intent of the framers, it is more illuminating to turn to the writings of the two leading scholars who had published legal writings—Chief Justice Zephaniah Swift and Judge Jesse Root.
Ill
The defendant claims, and I agree, that in view of our longstanding common law tradition, which predates our state constitution, the issue of sanity is an element of the state’s case. As a result, our state constitution requires the state to prove sanity beyond a reasonable doubt. This approach to constitutional interpretation has long been recognized as a means for determining what the framers had in mind. Chief Justice Peters *488recently wrote that “[sjtate courts . . . must be empowered to determine, in light of state interests and state history, what meaning to attribute to provisions contained in state constitutions.” (Emphasis added.) E. Peters, “State Constitutional Law: Federalism in the Common Law Tradition,” 84 Mich. L. Rev. 583, 588 (1986). This court held in State v. Stoddard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988), that we may look to “the historical record and due process tradition” in Connecticut in determining whether article first, § 8 of the Connecticut constitution affords greater rights than its federal counterpart.
The common law provided the foundation for our unwritten constitution prior to 1818. Jesse Root, a judge of the Superior Court, wrote the following in his introduction to the 1789-1793 reports of cases: “Common law is the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections: It is universal and extends to all men, and to all combinations of men, in every possible situation; and embraces all cases and questions that can possibly arise; it is in itself perfect, clear and certain; it is immutable, and cannot be changed-or altered, without altering the nature and relation of things; it is superior to all other laws and regulations, by it they are corrected and controlled; all positive laws are to be construed by it, and wherein they are opposed to it, they are void.” 1 Root (Conn.), Introduction p. ix. Judge Root also noted that the common law “is the Magna Charta of all our natural and religious rights and liberties, and the only solid basis of our civil constitution and privileges—in short, it supports, pervades and enlightens all the ways of man, to the noblest ends by the happiest means, when and wherever its precepts and instructions are observed and followed—the usages and customs of men and the decisions of the courts of justice serve to declare *489and illustrate the principles of this law . . . .’’Id., pp. x-xi. Indeed, Chief Justice Peters has noted that “[ijn Connecticut constitutional law, it is well established that several rights now denominated as constitutional had well-recognized common law antecedents.” E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259, 261 (1989). In addition, Chief Justice Peters has recognized that “we should cast a wider net to discover the variety of ways in which substantive rights were protected in state courts in the early years.” Id.
The common law antecedents clearly demonstrate that the issue of sanity was an element to be proven by the state. Twenty-two years before the adoption of our first formal constitution in 1818, Justice Zephaniah Swift, a leading Connecticut jurist, noted in his scholarly work on the state common law that “[t]o constitute a crime, it is necessary that there should be a vicious will, and an unlawful act. Where the will is not exercised, there can be no criminality . . . .” 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) pp. 367-68. Five short years after the adoption of the constitution of 1818, Justice Swift wrote: “[I]t is the reason of man that makes him accountable for his actions, and where there is no reason there is no crime . . . .” 2 Z. Swift, Digest of the Laws of Connecticut (1823) p. 361 (Z. Swift, Digest). He further noted that “a court, and jury must exercise a sound discretion in particular cases, always acquitting where there is a reasonable doubt of capacity . . . .” (Emphasis added.) Id., p. 362.
Furthermore, it is clear that in the colonial days and into the time of Swift’s writings, Connecticut jurists relied upon Blackstone as a source of the common law. Blackstone classified sanity as an essential element of a crime, noting that “an unwarrantable act without a *490vicious will is no crime at all.” 2 W. Blackstone, Commentaries on the Laws of England (Carey Ed. 1916), Book 4, p. 2175.
Justice Swift’s writing on the law of capacity is particularly important. He was instrumental in encouraging the public and the legislature to convene the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader is significant. J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) pp. 40-41.7 Second, since Justice Swift was the chief judge and the state’s leading judicial scholar at the time of the convention, his views on the law take on great significance in determining what the framers had in mind when adopting the language of the constitution. See W. Horton, “Connecticut Constitutional History 1776-1988,” 64 Conn. B.J. 355, 356-58 (1990).
Connecticut law has consistently provided that an individual could not be subject to punishment without the “mind and capacity, reason and understanding enough to enable him to judge of the nature, character and consequence of the act charged against him, that the act is wrong and criminal, and that the commission of it will justly and properly expose him to penalty.” State v. Davis, 158 Conn. 341, 354, 260 A.2d 587 (1969), vacated on other grounds, 408 U.S. 935, 92 S. *491Ct. 2856, 33 L. Ed. 2d 750 (1972). Although the state was initially entitled to rely on the presumption that the defendant was sane when the crime was committed, once the defendant introduced substantial evidence tending to prove insanity, “the burden rest[ed] upon the state, as it [did] in all other essential elements in the case, to prove beyond a reasonable doubt that the accused was legally sane and responsible at the time the offenses were committed. State v. Conte, 157 Conn. 209, 212, 251 A.2d 81 (1968), cert. denied, 396 U.S. 964, 90 S. Ct. 439, 24 L. Ed. 2d 428 (1969); State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947); State v. Joseph, 96 Conn. 637, 639, 115 A. 85 (1921).” Id., 356; see also State v. Evans, 203 Conn. 212, 237, 523 A.2d 1306 (1987); State v. Lee, 69 Conn. 186, 199, 37 A. 75 (1897); State v. Johnson, 40 Conn. 136, 140 (1873). This has always been the law of our state, rooted in constitutional precedent, until 1983 when the legislature designated the insanity defense an “affirmative defense.” See Public Acts 1983, No. 83-486, § l.8
The majority circumvents the longstanding history of placing the burden of proof of sanity on the state by noting that there is no temporal case law to indicate that the state bore the burden of proof on this issue prior to 1818.9 In so stating, the majority ignores firmly stated common law—from Blackstone to Chief Justice *492Swift—that defines sanity as an element of the crime.10 Moreover, the majority ignores the early cases that followed the constitutional convention and can rationally be presumed to have stated the traditional common law. These early cases followed Blackstone and Swift by placing the burden of proof on the issue of sanity on the state. State v. Lee, supra; State v. Johnson, supra. 11
Indeed, approximately half of the jurisdictions require the state to prove the defendant’s sanity beyond a reasonable doubt. K. Fritz, “The Proposed Federal Insanity Defense: Should the Quality of Mercy Suffer for the Sake of Safety?” 22 Am. Crim. L. Rev. 49, 54 (1984). “The presumption of sanity is merely the general assumption that, ordinarily, human beings are of sound mind. Sanity and insanity are terms applicable to the mode of operation of the mind as judged by some accepted standard of normality. But as soon as the fact of sanity is put in issue (i.e., where some evidence of mental disorder is introduced), the prevailing rule in most jurisdictions is that sanity, like any other fact, must be proved as part of the prosecution’s case beyond a reasonable doubt. Therefore, when all the evidence is in, if there remains a reasonable doubt as to the accused’s responsibility, on the ground of insanity and the tests of irresponsibility, there is a reasonable doubt upon the whole issue of his guilt, and he should accordingly be acquitted.” (Internal quotation marks omitted.) S. Glueck, Mental Disorder and the Criminal Law *493(1925) pp. 41-42; see also W. Richardson, The Law of Evidence (3d Ed. 1928) pp. 48-50; 9 J. Wigmore, Evidence (4th Ed. 1981) § 2501, p. 464.
The Colorado Supreme Court, presented with the sanity issue, held that a statute that imposed upon the defendant the burden of proving insanity by a preponderance of the evidence violated the due process provision of its state constitution. “All Colorado decisions from the beginning of territorial days to the present require application of the rule that total guilt must be established beyond a reasonable doubt. Mental capacity to commit a crime is a material part of total guilt for there can be no crime without the mens rea.” People v. District Court for County of Jefferson, 165 Colo. 253, 265, 439 P.2d 741 (1968). The Arizona court similarly held that a statute that provided for two trials— the first to determine the issue of guilt or innocence and the second to consider the insanity defense-violated the due process provision of the state constitution. “The bifurcated trial would require the jury to find the intent or the intention solely from the circumstances connected with the offense . . . and the question of sound mind would have to be presented at the second trial which gives rise to the question of whether this is due process of law .... If an individual is insane he would not be able to intend an act, nor would he be able to premeditate or have malice aforethought.” State v. Shaw, 106 Ariz. 103, 109, 471 P.2d 715 (1970), cert. denied, 400 U.S. 1009, 91 S. Ct. 569, 27 L. Ed. 2d 622 (1971).
By labeling mental disease or defect an affirmative defense that the defendant must prove by a preponderance of the evidence, the legislature and the majority of this court condone a constitutionally impermissible shift of the state’s burden to prove every element of its case. This shift violates our notions of fundamental fairness by violating the time honored rule *494that “[i]t is the duty of the Government to establish [a defendant’s] guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’ ” Leland v. Oregon, supra, 802-803 (Frankfurter, J., dissenting).
IV
The defendant also claims that §§ 53a-12 and 53a-13 violate principles of fairness, justice and morality that are deeply embedded in natural law and in the due process provisions of our state constitution, particularly the protections of article first, § 9, which provides that “[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law.” Although the majority acknowledges that natural law principles were widely discussed in colonial America, it concludes that “we are not prepared to hold that the defense of insanity is so central to the issue of criminal culpability that allocating the burden of proof to the defendant, by the preponderance of the evidence, is constitutionally impermissible. ’ ’
Natural law, which pervaded eighteenth century legal thought throughout America, including Connecticut, is but one of many factors that must be considered in interpreting our state constitution.12 Natural law theories played a role in shaping the intent of the delegates and the citizens who enacted Connecticut’s charter of *495liberty; accordingly, it is a necessary part of our analysis. “The framers of our state constitution, like those of the federal constitution, when drafting these clauses had in mind those fundamental [individual] rights, sometimes referred to as ‘natural rights,’ which the people took for granted as being deeply rooted in the core of liberty. Justice Zephaniah Swift . . . recognized and defended natural rights as follows: ‘Natural rights consist in the enjoyment and exercise of a power to do as we think proper, without any other restraint than what results from the law of nature, or what may be denominated the moral law. . . .’ ” (Citations omitted.) Doe v. Maher, 40 Conn. Sup. 394, 422-23, 515 A.2d 134 (1986), appeal after remand sub nom. Doe v. State, 216 Conn. 85, 579 A.2d 37 (1990). Christopher Collier, a professor and historian for the state of Connecticut, has noted that “to Connecticut jurists, common law meant more than judicial precedent and case law; it included the natural law as well.” C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 94 (1982). The Fundamental Orders (1638-1639), arguably Connecticut’s first written constitution, were based upon the natural law premise that “ ‘where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require.’ ” W. Aspell, “Natural Law in the Connecticut Tradition,” 31 Conn. B.J. 105, 105-106 (1957). Professor Tribe, a nationally recognized constitutional scholar, points out that some authorities have “insisted that an intense and widely shared adherence to natural rights ideas by the Constitution’s framers led them to neglect more specific mention of rights deemed too obvious to require elabo*496ration.” L. Tribe, American Constitutional Law (2d Ed. 1988) § 15-3, p. 1310; see also 2 C. Antieau, Modern Constitutional Law (1969) § 15:44. “The notion that governmental authority has implied limits which preserve private autonomy predates the establishment of the American republic. During the 17th and 18th centuries, there evolved an American tradition of ‘natural law,’ postdating that ‘certain principles of right and justice . . . are entitled to prevail of their own intrinsic excellence.’ ” L. Tribe, supra, § 8-1, p. 560; D. Farber & S. Sherry, A History of the American Constitution (1990) p. 4.
One of the implicit principles of right and justice is the idea that moral culpability is essential to guilt. To punish for their acts those who cannot be held morally accountable would be cruel and unacceptable. 2 Z. Swift, Digest, supra, p. 362. “The formulations [of the insanity defense] come to us as part of a tradition which makes the notion of ‘desert’ or ‘blame’ central to criminal responsibility and which tries to define a class of persons who fall outside the boundaries of blame.” A. Goldstein, The Insanity Defense (1967) pp. 9-10. In Connecticut, it is clear that punishment was imposed only on those individuals who freely “choose and practice evil, and . . . refuse and counteract that which is just, right and good . . . for on freedom of choosing, depends the merit or demerit of every action.” 1 Root (Conn.), supra, p. xxx. The notion of blame is deeply embedded in Connecticut tradition and is implicit in our concept of liberty and fundamental fairness. To require that the defendant assume the burden of proving insanity or lack of culpability by a preponderance of the evidence violates this essential principle of due process. The defendant is forced to assume the risk on an issue that bears directly on his culpability and places him in the position of being punished when not “clearly warranted by law.”
*497Furthermore, it is reasonable to assume that the framers of the 1818 constitution intended to incorporate within the constitution and its due process protections fundamental principles founded on the history of legal and moral thought. It is also significant, in assessing the framers’ intent, that the inhabitants of this state were deeply religious, and that their religious convictions played an important role in shaping Connecticut law. Id., pp. xxi-xxiii. “The requirement of moral culpability for criminal condemnation reaches back to the origins of Western ethical and legal thought. . . . Hebrew law distinguished between the harmful act that was traceable to fault and that which occurred without fault. . . . The Greek moral philosophers, at least as far back as the fifth century B. C., considered the distinction between a culpable and non-culpable act to be among the ‘unwritten laws of nature and supported by the universal moral sense of mankind’ .... The same view pervaded Roman law and appears in the moral teaching of the early Christian Church Fathers. It emerges in Anglo-Saxon law no later than the twelfth century. . . .” (Citations omitted.) American Bar Association, First Tentative Draft, Criminal Justice Mental Health Standards (1983), § 7-6.1, p. 7-271 n.3. This fundamental premise has endured and is embedded in the common law of this state.
V
In addition to the history and tradition leading up to our state constitution, practical and sociological concerns also compel the conclusion that §§ 53a-12 and 53a-13 violate article first, §§ 8 and 9 of the Connecticut constitution. As the majority acknowledges in footnote 5 of its opinion, “a jury may have difficulty in understanding the distinction between mental status as it relates to the defense of insanity and mental status as it relates to intent.” The majority concludes, *498nevertheless, that any confusion may be addressed by an appropriate jury instruction. I am not persuaded.
Sanity is an elusive issue that has been the source of disagreement and uncertainty among legal minds and is certain to baffle jurors. To say that the jury is capable of sorting out issues of intent and culpability, especially in the emotionally charged atmosphere associated with a trial in which the defendant’s sanity is at issue, is to ignore the reality of our jury system. These issues are complex not only for jurors, but for lawyers and psychiatrists as well. We should not divorce ourselves from the realities of the courtroom by underestimating the difficulty that the sanity issue presents to the average juror.
“Ever since our ancestral common law emerged out of the darkness of its early barbaric days, it has been a postulate of Western civilization that the taking of life by the hand of an insane person is not murder. But the nature and operation of the mind are so elusive to the grasp of the understanding that the basis for formulating standards of criminal responsibility and the means for determining whether those standards are satisfied in a particular case have greatly troubled law and medicine for more than a century.” Smith v. Baldi, 344 U.S. 561, 570, 73 S. Ct. 391, 97 L. Ed. 2d 549 (1952) (Frankfurter, J., dissenting), overruled, Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Chief Justice Swift echoed this sentiment, noting that “[n]o precise rule can be laid down, and a court, and jury must exercise a sound discretion in particular cases, always acquitting where there is a reasonable doubt of capacity: and though a man has some faint glimmerings of reason, yet if he does not comprehend the consequences of what he is doing, cannot distinguish between right, and wrong, and is rather actuated by a blind impulse, he cannot be considered as a moral, and accountable agent.” 2 Z. Swift, Digest, supra, p. 362.
*499“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U.S. 358, 370 [90 S. Ct. 1068, 25 L. Ed. 2d 368] (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). For me, proof that a defendant had the mental capacity to form the intent necessary to commit the crime charged is of such importance that the risk of error must fall on the state’s shoulders.
Given Connecticut’s longstanding tradition of recognizing sanity as an element of the state’s case, a tradition so fundamental that it is firmly embedded in our constitutional guarantee of due process, I would hold that §§ 53a-12 and 53a-13, insofar as they place the burden of proof of insanity on the defendant after the issue of sanity has been raised, violate article first, §§8 and 9 of the Connecticut constitution.
Accordingly, I dissent.
See footnote 2 of the majority opinion.
See footnote 5, infra.
I agree with the majority that the defendant has neither adequately raised nor briefed the claim that General Statutes §§ 53a-12 and 53a-13 are unconstitutional as a matter of federal constitutional law.
In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we noted that the following tools of analysis should be considered in construing the contours of our state constitution: (1) the textual approach; (2) holdings and dicta of this court and the Appellate Court; (3) federal precedent; (4) sister state decisions; (5) the historical approach; and (6) economic/sociological considerations.
Article first, § 9 of the Connecticut constitution of 1818 provides in relevant part: “[The accused] shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, but by due course of law. . . .”
Article first, § 8 of the Connecticut constitution of 1965 provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law
Both article first, § 10 of the Connecticut constitution of 1818 and article first, § 9 of the Connecticut constitution of 1965 provide: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
“The 1818 debates are crucial for another reason. Connecticut was one of only two former colonies which did not write a constitution in the late eighteenth century after declaring independence. . . . Connecticut waited until 42 years after the Declaration of Independence and 31 years after the Federal Convention. While we tend to think of both 1818 and 1787 as a long time ago, 1818 was as different from 1787 as today is from 1959. For that reason, what was said to justify language in drafting the U.S. Constitution in 1787 is not a safe guide for construing similar language in 1818.” W. Horton, “Annotated Debates of the 1818 Constitutional Convention,” 65 Conn. B.J. SI-3 (1991).
“ ‘It is true,’ [Justice Swift] observe[d], ‘we have no written constitution-, our constitution is made up of usages and customs: but it has been always understood that there were certain fundamental axioms which were to be held sacred and inviolable, and which were the basis on which rested the rights of the people. . . .’ ” J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) p. 41.
Under General Statutes § 53a-12 (b), “[w]hen a defense declared to be an affirmative defense is raised at trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.” It is also important to note that the Commission to Revise the Criminal Statutes stated in its comments that “[t]hose defenses declared 'affirmative defenses’ in the Code embrace conduct which did not heretofore constitute a defense under Connecticut law.” (Emphasis added.) General Statutes Annotated § 53a-12 (b), Commission Comment 1971.
It is interesting to note that the majority of this court did not have any trouble relying on Chief Justice Swift’s treatise when they restricted the state constitutional right to bail by engrafting a “good behavior” requirement, contrary to the plain language of the constitution. State v. Ayala, 222 Conn. 331, 350, 610 A.2d 1162 (1992).
The majority’s reliance on the lack of affirmative case law prior to 1818 as support for its contention that the state did not bear the burden of proof on the issue of sanity ignores the historical reality that few cases were reported during that time period. As a result, judges relied most heavily on Blackstone and Swift. See W. Horton, “Connecticut Constitutional History 1776-1988,” 64 Conn. B.J. 355, 358 (1990).
Aside from State v. Hoyt, 46 Conn. 330, 337 (1878), and State v. Schweitzer, 57 Conn. 532, 539-41, 18 A. 787 (1889), both aberrations from the established line of cases, the majority cannot point to any case indicating that sanity was not an element of the crime charged, either before or after the adoption of the constitution of 1818.
Although natural law is one of many useful sources in attempting to discern the intent of the framers of our state constitution, it should not be adhered to so as to preclude current economic and sociological considerations. “Constitutional provisions must be interpreted within the context of the times. . . . We must interpret the constitution in accordance with the demands of modem society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.” (Citations omitted; internal quotation marks omitted.) State v. Dukes, 209 Conn. 98, 114-15, 547 A.2d 10 (1988).