So there is no confusion as to what this case (Moore) and Hilton v. New Haven, 233 Conn. 701, 661 A.2d 973 (1995) (Hilton), are about, let me first state what they are not about. These cases are not about the right of the poor to housing, and they are not about the right to welfare benefits or the right to receive monetary aid from either the state or local government. These cases are not about the extent of the legislature’s discretion to determine the level of care that is to be given in order to meet the needs of the poor. And these cases are not about the right of able-bodied persons, who are able to work and for whom there is work, to be on the “dole.”
Rather, these cases are about the state constitutional right of the poorest of the poor, when they are destitute and homeless, to the most basic shelter—a cot in a dormitory style barrack—so that they can survive the elements in the dead of the winter and be free from physical suffering and abuse on the street. They are about the right of the poor to the most basic subsistence, such as nourishment at a soup kitchen, when they otherwise have no food and are subject to serious health risks. And they are about the right of this destitute class of persons to minimal, essential medical care.1 Put sim*644ply, these cases are about the state government's obligation to provide the minimal subsistence necessary for humane survival to those of its population who are utterly impoverished.
Connecticut has recognized, from the time the colony first came into existence in the middle of the seventeenth century, that the government must provide these survival needs for the indigent. This history demonstrates that the collective conscience of our people requires that these provisions be made for the poor. Furthermore, it is clear that this historic right of the poor, which equates to the right to humane survival, is absolutely fundamental and is implicit under our state constitution. Therefore, any legislative act that restricts the right to the minimal subsistence necessary for such survival must withstand constitutional scrutiny.
The Hilton and Moore cases, which were argued together before this court, include identical classes of plaintiffs—persons who are destitute.2 Although the Hilton case focuses solely on the right to shelter and the Moore case on the more general right to minimal subsistence, I will meld the analysis of these cases together because they essentially raise the same issues in challenging the state constitutionality of General Statutes (Rev. to 1993) §§ 17-273b and 17-273d, as *645these statutes incorporated No. 92-16, §§ 6 and 7, of the 1992 Public Acts, Special Session, May, 1992 (Spec. Sess. P.A. 92-16).3
The plaintiffs in these cases claim that the Connecticut constitution requires the state, through its cities and towns (towns), to provide minimal subsistence to persons who are utterly impoverished, and that Spec. Sess. P.A. 92-16 is inconsistent with this obligation. Specifically, the plaintiffs argue that Spec. Sess. P.A. 92-16 unconstitutionally allows towns, in two circumstances, to condition the provision of minimal subsistence on factors without regard to whether a person’s humane survival is threatened. First, the act links the availability of shelter to the receipt of general assistance benefits without regard to the circumstances facing the indigent person.4 Second, the act permits towns to cease providing general assistance benefits, including an allowance for food, to a person who received those benefits for nine of the previous twelve months.
It is clear to me that the preamble to our state constitution establishes an implicit right of destitute persons of Connecticut to receive those things necessary for minimal subsistence—minimal shelter, food and essential medical care. Article first, § 10, of our state constitution protects this right from infringement and provides the mechanism for the enforcement of the right. The towns, to which the state has delegated its obligation to care for the poor, may fulfill their constitutional obligation either by directly or indirectly *646providing minimal shelter, food and essential medical care, or by furnishing cash payments to the needy individuals. In no event, however, may towns refuse to provide any assistance or provide a level of assistance that does not allow a human being to survive in a humane manner. Furthermore, towns may not be allowed to evade this obligation after providing assistance for only a portion of the year. A human being, after all, cannot survive in a humane manner, or at all, if he is forced to forgo all shelter, food and essential medical care for three out of twelve months.
The state may, however, establish reasonable requirements as a precondition for persons to receive these entitlements. The state, for example, may require able bodied poor persons to participate in workfare programs, to perform work for municipalities and the state or to participate in job training and other educational programs in order to make them more employable. Furthermore, the state need not furnish minimal subsistence, either in-kind or monetary, to a person who is employable and for whom employment is available. However, to the extent that Spec. Sess. P.A. 92-16 permits towns to escape their constitutional responsibilities, and to the extent that the defendants have refused to provide minimal subsistence, the state constitutional rights of the plaintiffs have been infringed.
In a case such as this, where seven justices have produced three separate opinions, and where only a bare majority have found no state constitutional right to minimal subsistence necessary for humane survival, it is fruitful to summarize these opinions of my colleagues and my overall concerns about them before proceeding to a more detailed analysis. The majority opinion, which represents the views of only four justices, holds that a person does not have a state constitutional right to minimal subsistence. Chief Justice Peters, in her concurring opinion, helps to bring into sharp focus the posi*647tion of these four justices and of the consequences of their departure from this state’s 350 year history. As Chief Justice Peters points out, the majority would constitutionally allow government “to stand idle while people, without food, shelter, clothing or medical care, were left to die in the streets.” (Emphasis added.)
I am not willing, as are four justices today, to wash away the rich constitutional history of this state merely because the right is difficult to define and because “[t]he decision over the allocation of limited public funds is fraught with judgments of morality, policy and value over which opinions are sharply divided.” (Internal quotation marks omitted.) Nor am I willing to attribute to these poor persons an improper motive to get a free ride simply because they seek to compel the state to make shelters available so that they can survive the elements and avoid the crime of the streets. No one who has other choices available would opt instead for a state provided cot in a dormitory style barrack, with all its accompanying indignities. Finally, I am unwilling to characterize the fundamental right to humane survival merely as another claim for economic equality unprotected by the state constitution. Those who “take their lessons from life itself”5 surely can understand that a right evidenced by the collective conscience of the people of this state and spanning four centuries has been transformed into a firmly rooted constitutional right of fundamental value.
Moreover, I disagree with the majority’s decision to address the constitutional issues initially in Moore, where there is a limited factual record because of the nature of that litigation,6 and then to bootstrap that *648state constitutional ruling into Hilton, which has been certified as a class action and for which there is a complete factual record. The certified class of plaintiffs in Hilton consists of persons who are homeless and who have been forced to endure the dead of winter in abandoned houses with no beds and no heat, or in the outdoors, where they have been subject to physical abuse while attempting to use park benches as their beds.
The concurring opinion of the Chief Justice, on the other hand, concludes that there is a state constitutional right to minimal subsistence. Although I agree with much of the scholarly constitutional analysis contained in the concurrence, I disagree both with its formulation of the extremely limited quality of this right and with its conclusion that there is an insufficient record in either Moore or Hilton to sustain the appeals of these poor plaintiffs.
First, the concurrence contends that the constitutional right to subsistence does not arise until poor persons prove that, as a result of a statute enacted by the legislature, they “will be unable to secure the necessaries of life such that they will face a grave threat to their health or welfare” and “for reasons beyond their control, they could not comply with the conditions the statute imposes.” Peters, C. J., concurring, p. 640. As I will demonstrate in this dissent, this was not the standard our ancestors demanded, nor should it be the one to which we adhere today. More importantly, such a standard loses sight of the nature of the constitutional right and of the complete deprivation of benefits caused *649by Spec. Sess. P.A. 92-16. That act relieves towns, under any and all circumstances, of their responsibility of caring for their poor for a period of three months out of every year, and restricts the availability of shelter only to those receiving general assistance benefits. When a poor person has no shelter in the dead of winter, or no food to survive, or is in desperate need of medical care, is that poor person first to consult with a lawyer and bring a legal action? The right is, simply, a right to humane survival. We should not require a poor person to establish, as a preliminary matter, that he cannot survive. Indeed, if that were the case, the existence of the right could become moot, and the nature of the right meaningless. Rather, in this class action we should engage in a facial review of the constitutionality of the statute, as we do for other statutes that may intrude on fundamental constitutional guarantees. See, e.g., State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986) (“[w]here, however, a challenged statute, if vague, could intrude on fundamental constitutional guarantees such as first amendment rights, we will refuse to enforce the statute if we find that it is unconstitutionally vague on its face”).
Second, I disagree that the record in these cases does not support the constitutional claims of the plaintiffs. The concurrence disregards the fact that the Hilton case is a class action and that the record in that case clearly indicates not only that the named plaintiffs were faced with imminent bodily harm as a result of the city’s failure to furnish shelter,7 but also that at least one *650member of the plaintiff class had failed to qualify for assistance under the statute for “reasons beyond [his] control.”8
*651I
Facts
The Hilton and Moore cases involve the same classes of plaintiffs and the same constitutional issue, and the consequences of the defendants’ action are mostly the same in each. The cases, however, present somewhat different factual backgrounds and arrive at this court with different procedural histories. An accurate presentation of these cases, therefore, requires us to look separately at (1) the history of the Hilton case, (2) the history of the Moore case, and (3) what is at stake in both.9
A
The Hilton case was instituted in response to the decision by the city of New Haven in 1989 to discontinue the operation of one of its three shelters for the homeless. Evidence at trial showed that these shelters had been filled to capacity every night from January, 1989, until this action was brought in April, 1989. Indeed, the shelters were so crowded during this time that as many as fifteen people each night were turned away because there was no room for them. Despite this demonstrated need for homeless shelters, the city of New Haven announced it would close one of the three shelters, which offered a cot, blanket and pillow for seventy-five people every night, as well as a meal at night and in the morning.
The plaintiffs brought this class action seeking an injunction that would prevent the city from closing the *652shelter and require it to provide adequate emergency shelter to the homeless. On December 27,1989, the trial court, DeMayo, J., issued the injunction, concluding that General Statutes (Rev. to 1989) § 17-273, now § 17b-116, required the city to furnish emergency shelter to the homeless. The court also ordered the defendants to submit a plan “ 'outlining the process by which the . . . order will be implemented.’ ” The case remained pending in the trial court for the next three years. The city finally filed a plan that was approved by the trial court in May, 1992.
In July, 1992, however, Spec. Sess. P.A. 92-16 became effective. The effect of this statute, in part, was to restrict the obligation of towns to provide shelter for the homeless. The act was incorporated in General Statutes (Rev. to 1993) § 17-273d to require towns to provide shelter only to those persons who received general assistance benefits and were homeless for one of six reasons.10 In response to this amendment, New Haven asked the trial court to reconsider its issuance of the injunction. On November 6,1992, the trial court ordered the city to submit a revised plan for compliance with Spec. Sess. P.A. 92-16 and retained jurisdiction to assure that the city did so. The trial court also concluded that the Connecticut constitution does not guarantee a right to shelter. Both parties appealed from the decision of the trial court. On May 26, 1993, the trial court approved a compliance plan drafted by the city that required the city to provide shelter only to the categories of people enumerated under the *653revised statute. The city then promptly closed a shelter that had offered space for fifty homeless persons every night. As a result, several of the homeless plaintiffs were deprived of shelter.
B
The Moore case was brought in April, 1994, in response to the decision by the city of Bridgeport, pursuant to Spec. Sess. P.A. 92-16, to cease paying general assistance benefits to 750 persons who had received general assistance for nine months. “General assistance is a state run program designed to aid individuals and their families who have insufficient income or assets to meet their essential needs.” Barannikova v. Greenwich, 229 Conn. 664, 672, 643 A.2d 251 (1994). General assistance benefits are administered by the towns and are monetary benefits of last resort for the poor and needy in Connecticut. See id. Benefits are available only to a person “who has not estate sufficient for his support, and has no relatives of sufficient ability who are obliged by law to support him . . . .” General Statutes (Rev. to 1993) § 17-273 (a), now § 17b-116 (a).
Prior to the enactment of Spec. Sess. P.A. 92-16, General Statutes (Rev. to 1991) § 17-273b set forth the following additional requirements for a person to be eligible to receive benefits. This statute prevented “an employable person” from receiving general assistance benefits if he or she had failed to register with the nearest public employment agency, had refused to accept a job offer, or had refused to participate in a training program. The statute, however, did not limit the amount of time that a person otherwise in compliance with program requirements could receive general assistance benefits.
Special Session P.A. 92-16 changed this statute dramatically. The act required towns to pay general assist-*654anee benefits to employable persons for only nine months out of a twelve month period, without regard to whether employment for that person was available. Although a town could decide to extend benefits for the final three months, the statute did not require it to do so. On April 1,1994, the city of Bridgeport elected to cease paying general assistance benefits to 750 employable persons who had been receiving benefits for the previous nine months and who otherwise were in full compliance with the program requirements.
The plaintiffs brought this action on behalf of themselves and the other 750 persons on April 15, 1994. They challenged the constitutionality of Spec. Sess. P.A. 92-16 and sought an injunction barring the city of Bridgeport from terminating their general assistance benefits. At the hearing on the injunction, several of the plaintiffs testified that they had tried to obtain work, but that none was available for them. Without the general assistance benefits, they testified, they would be completely destitute. Moreover, as a result of Spec. Sess. P.A. 92-16, their inability to receive general assistance also meant that towns need not provide them with a cot in a homeless shelter. The trial court, Vertefeuille, J., however, denied the injunction and, as a result, several of the plaintiffs became homeless. The plaintiffs took this appeal from the decision of the trial court.
C
These two cases dramatically demonstrate how Spec. Sess. P.A. 92-16 has the potential to force the poor and impoverished of Connecticut into homelessness, without any income or provision for the basic necessities of shelter, food and essential medical care. In order to appreciate the full effects of Spec. Sess. P.A. 92-16, it is important to understand what it means to be without shelter and the other things necessary for humane *655survival. In short, the combination of Spec. Sess. P.A. 92-16 and the actions of the city of New Haven and the city of Bridgeport worked to plunge some Connecticut citizens into the tragedy and despair of living, sleeping and eating on the streets.
The lives and health of the unsheltered homeless are seriously threatened by exposure to the elements. They are exposed to ambient cold or heat that may lead to hypothermia or hyperthermia, either of which may be fatal.11 R. Bingham, R. Green & S. White, The Homeless in Contemporary Society (1987) p. 109. The unshel-tered homeless seek refuge from the elements anywhere they can find it, including trash compactors and garbage bins. M. Hombs, American Homeless (1990) p. 29. The named plaintiff in the Hilton case, Herbert Hilton, testified that he has been forced to sleep in parks and abandoned houses in the dead of winter, wrapping himself in discarded rugs and lighting *656small fires to avoid freezing to death. Deidre Colburn, another plaintiff in the Hilton case, spent sleepless nights in abandoned houses after being refused a cot at a shelter. She suffered depression and weight loss due to her degrading living conditions.
Renee Boyd, the case manager of the Homeless Health Care Project of the Hill Health Center in New Haven, testified that the filthy conditions in which the unsheltered homeless are forced to live cause and exacerbate health problems such as respiratory ailments, viruses, fevers and muscular diseases. Infectious diseases are rampant among the homeless. The most serious of these are acquired immune deficiency syndrome (AIDS), tuberculosis12 and sexually transmitted diseases. Staff of the U.S. Commission on Security and Cooperation in Europe, Homelessness in the United States (August 1990) p. 24. A recent study of the homeless revealed that serious dental problems also were pervasive among them. Id.; see J. Momeni, Homelessness in the United States (1989) p. 225.
Of course, the unsheltered homeless have no facilities in which to bathe and groom themselves.13 They suffer a very high frequency of skin disorders and infestations, including dermatitis, ulcers, boils, scabies and hair or body lice. R. Bingham, R. Green & S. White, supra, 109. When an unsheltered homeless person receives an injury, maggots often infest the wound. Id.14
*657Many of the unsheltered homeless suffer from mental illness, and others exhibit symptoms of mental illness that may not have a physiological cause. The life of the homeless is such “that many chronically homeless people appear to be mentally ill when in reality they manifest symptoms reflective of their environment. The homeless who appear paranoid while living on the street . . . may be quite realistic in their fear of being robbed, beaten, abused, or killed. Add to this the physiological stresses resulting from poor nutrition, lack of sleep, and exposure, and it is no wonder that many homeless people manifest some psychopathological symptoms .... Remove these problems and the symptoms may quickly abate . . . .” F. Redburn & T. Buss, Responding to America’s Homeless: Public Policy Alternatives (1986) pp. 79-80. Additionally, it has been observed that homeless people often act strangely as a kind of self-defense mechanism. They wish to keep other people, including potential aggressors, away. Id., p. 80; A. Baum & D. Burnes, A Nation in Denial (1993) p. 67.
Finally, the unsheltered homeless are often linked to crime, both as those committing the illegal acts and as the targets of the criminal acts of others. Many of the unsheltered homeless commit petty crimes in order to *658“acquire basic necessities such as food, shelter and clothing”; F. Redburn & T. Buss, supra, p. 50; or to escape their miserable conditions, hoping that they may be able to spend the night in a warm, safe jail cell rather than on the icy and dangerous streets. Id., pp. 50-51. Colburn, for example, testified that she once was arrested for trespassing when she tried to spend the night in an abandoned building after being turned away from shelters. The life of an unsheltered homeless person also makes him or her personally vulnerable and a frequent target of criminal aggressors.15 For example, both heterosexual and homosexual rapes are common. It is estimated that the incidence of rape is twenty times greater for the homeless than for the general population. R. Bingham, R. Green & S. White, supra, p. 109. In Los Angeles, several homeless men were murdered, apparently for no reason, by stabbing and slashing. F. Redburn & T. Buss, supra, p. 40. The plaintiffs in Hilton gave compelling testimony about their own experiences suffering from the constant threat of mugging, assault and rape. One of the plaintiffs, Janet Cardin, testified that she has been forced to endure the unwanted touches and sexual propositions of strangers who approached her as she tried to steal just a few hours of sleep at night on the New Haven Green. The psychological damage that results from such attacks can last for years.
In essence, the unsheltered homeless—the plaintiffs in these cases—exist under living conditions that no member of a civilized society should have to endure. They lack shelter, they lack food and they lack the ability to obtain the subsistence human beings require in *659order to survive in a humane manner. This appalling result, of which Spec. Sess. P. A. 92-16 and the actions of New Haven and Bridgeport were a direct cause, not only fails to meet contemporary standards of human decency, but also violates our state constitution.
II
State Constitutional Adjudication
It is now beyond debate that while the federal constitution establishes a minimum level of fundamental rights, the states, in interpreting their own state charters of liberty, are free to afford their citizens greater rights and privileges. See State v. Joyce, 229 Conn. 10, 15-16, 639 A.2d 1007 (1994). Indeed, this court has stated that “[i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come tq expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.” Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977).
In recent years this court has embraced this doctrine and held that our state constitution provides greater protection of individual rights than does its federal counterpart. See, e.g., State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995) (rejecting federal “bad faith” requirement in criminal cases where police fail to pre*660serve evidence); Daly v. DelPonte, 225 Conn. 499, 624 A.2d 876 (1993) (holding that laws that discriminate against the physically disabled must withstand strict scrutiny); State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990) (rejecting federal “good faith” exception to the exclusionary rule); Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553 (1977) (requiring periodic judicial review of the civil commitment of mental patients).16
Indeed, in order to develop our state constitutional jurisprudence in a principled manner, we have adopted a methodology that we follow as an aid to interpreting the true meaning of our state charter of liberty. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).17 The plaintiffs in these cases have appropriately raised their claims under the state constitution.
*661III
The State Constitutional Right to Minimal Subsistence Necessary for Humane Survival
The state constitution, which was first formally adopted in 1818,18 does not explicitly provide for the right of the poor to receive subsistence from the towns. Nevertheless, we have previously recognized that there are some rights that are so fundamental they need not be explicitly set forth in the state constitution. State v. Conlon, 65 Conn. 478, 489, 33 A. 519 (1895) (“It is patent that not everything that can be called a right *662is included in [the declaration of rights]. The protected rights are those that inhere in ‘the great and essential principles of liberty and free government’ recognized in the course of events that resulted in our independence .... The language used is purposely broad . . . .”). Indeed, we have recognized several fundamental rights to be implicit in our state charter of liberty, including the right to be free from cruel and unusual punishment; State v. Ross, 230 Conn. 183, 246, 646 A.2d 1318 (1994), cert. denied, U.S. , 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); the right of a criminal defendant to be present when the court charges the jury; State v. Simino, 200 Conn. 113, 128, 509 A.2d 1039 (1986); and the right to be free from double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also Doe v. Maher, 40 Conn. Sup. 394, 422-25, 515 A.2d 134 (1986) (recognizing as implicit in our state constitution a person’s fundamental right to privacy).
The preamble and article first, § 10, of the Connecticut constitution provide the textual framework for the implicit right of the poor to minimal subsistence and its enforcement. The preamble provides: “The People of Connecticut acknowledging with gratitude, the good providence of God, in having permitted them to enjoy a free government; do, in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors', hereby, after a careful consideration and revision, ordain and establish the following constitution and form of civil government.”19 (Emphasis added.) Section 10 of article first of the Declaration of Rights provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputa*663tion, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”20
The plain language of the preamble makes clear that the framers intended our constitution to perpetuate and protect the rights and privileges of the people that were firmly rooted in the law and customs of Connecticut prior to the adoption of the state’s first formal charter of liberty. The framers provided in article first, § 10, that the court will be open to enforce these rights. In order to determine the scope of the rights and privileges encompassed in these open-ended constitutional provisions, therefore, we must begin by examining the state of the law as it existed prior to 1818. See State v. Ross, supra, 230 Conn. 46-47. Indeed, this is the crucial step in our state constitutional analysis.
We look primarily at two sources in order to determine the state of the law as it existed in 1818 and prior thereto: law codified in statutory form and the common law. For example, with respect to those rights that are incorporated in our state constitution’s civil due process clause, we have stated that “all rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury, thus being exalted beyond the status of common-law or statutory rights of the type created subsequent to the adoption of that provision.” Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 331, 627 A.2d 909 (1993); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 195, *664592 A.2d 912 (1991); Dubay v. Irish, 207 Conn. 518, 529, 542 A.2d 711 (1988); see Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289, 627 A.2d 1288 (1993); Sharp v. Mitchell, 209 Conn. 59, 64, 546 A.2d 846 (1988); Ecker v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987); Butzgy v. Glastonbury, 203 Conn. 109, 122, 523 A.2d 1258 (1987); Daily v. New Britain Machine Co., 200 Conn. 562, 585, 512 A.2d 893 (1986); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 133 n.3, 479 A.2d 231 (1984). In making a determination of whether a right is so firmly rooted in the law of the state to be considered an implicit constitutional right we must, therefore, consider in turn these two sources.
A
STATUTORY LAW
As a source of Connecticut legal history, our colonial statutes are perhaps a more accurate and complete statement of colonial law than the law stated in the written decisions of our early courts. As one commentator pointed out, Connecticut eschewed the idea that rules of law should be developed through a process of judicial decisions. L. Lewis, “The Development of a Common Law System in Connecticut,” 27 Conn. B.J. 419, 421 (1953). Fearful that such a system might harken back to the common law injustices of England, and desiring to express their laws in explicit terms, the colonists exhibited “complete reliance on statute law.” Id. Indeed, of all the colonies, Connecticut most clearly rejected the common law system. Id., 419. These early statutes, therefore, are an important and reliable source for understanding our legal tradition in Connecticut. W. Horton, The Connecticut State Constitution (1993) p. 4. We have consistently stated that rights established by statute prior to 1818 are an important source of rights recognized as implicit under our 1818 constitu*665tion. See, e.g., Kelley Property Development, Inc., v. Lebanon, supra, 226 Conn. 331-33; Dubay v. Irish, supra, 207 Conn. 529; Ecker v. West Hartford, supra, 205 Conn. 234; Gentile v. Altermatt, supra, 169 Conn. 286.
The first codification of Connecticut statutes occurred in 1650, when the General Court of the colony of Connecticut adopted a systematic body of laws prepared by attorney Roger Ludlow.21 This body of laws became known as the Ludlow Code.22 Significantly, that Code included a provision for governmental assistance to the poor. This provision stated in pertinent part: “POORE. It is ordered by this courte and authority thereof, That the courte of magistrates shall have power to determine all differences about lawfull settling, and providing for pore persons, and shall have power to dispose of all unsettled persons, into such townes as they shall judge to bee most fitt, for the maintenance and imployment of such persons and familyes, for the ease of the countrye.” The Code of 1650 of the General Court of Connecticut (S. Andrus pub. 1822) p. 80.
Twenty-two years later, the next codification of statutes included a provision imposing on Connecticut towns the duty to provide for their indigent residents. Book of the General Laws for the People Within the Jurisdiction of Connecticut (1672) p. 57.23 This provision, which remained substantially unchanged through several revisions of the colonial statutes, required the towns to provide subsistence for the poor. See Acts and *666Laws of His Majesties Colony in Connecticut in New England (B. Green & J. Allen pubs. 1702) pp. 94-95. After the colony gained independence from English rule, the statute continued to require the towns to provide for the poor. See General Statutes (1784) p. 193.
The statute in effect at the time the 1818 constitution was adopted provided in pertinent part: “Be it enacted by the Governor and Council and House of Representatives in General Court assembled, that each town in this state shall take care of, support and maintain their poor . . . and the selectmen for the time being, or overseers of the poor (where any such are chose), shall have full power to expend or disburse out of the town stock or treasury, what they shall judge meet and necessary from time to time, for the relief, supply and support of any of the poor belonging to their town. . . .” General Statutes (1808 Rev.) tit. CXXX. This statute, in particular, demonstrates not only the historical obligation of Connecticut towns to provide minimal subsistence and the fundamental right of the poor to receive it, but the societal importance accorded to caring for the indigent. The language provided that each town had an affirmative obligation to provide for the poor, and granted to the selectmen of each town an open-ended authorization to disburse from the town resources any amount necessary to accomplish this purpose.
In sum, from the colony’s first code adopted in 1650 through the adoption of the first formal constitution in 1818—a period of 168 years—the statutory law of the state was clear: the towns were required to provide for the basic needs of the poor.
After the ratification of the 1818 constitution, the state statutes were substantially updated in an effort to eliminate obsolete provisions that either were no *667longer necessary or appropriate due to changes in custom or social sentiment or were contrary to the new constitution. E. Capen, The Historical Development of the Poor Law of Connecticut (1905) p. 97. Importantly, the resulting Code of 1821 perpetuated the statutory duty of the towns to provide for their indigent. Zephaniah Swift, a former chief justice of the Supreme Court of Errors who was charged with the responsibility of editing and reorganizing the Code of 1821,24 wrote in its preface that the purpose of the revision was “to render the statutes conformable to the constitution.” General Statutes (1821 Rev.) p. viii.
These early statutes are striking proof of our tradition in Connecticut, and of the obligation of the towns, to provide minimal subsistence to our poor and needy. The fundamental importance of these statutes is underscored by the statutory requirement during the early colonial period that each family purchase a copy of the code.25 Indeed, these early statutes reveal that “[w]e have a continuous unbroken tradition in Connecticut *668dating back from the middle of the seventeenth century right down to the present that the public will be responsible for all the medical care and other needs of [the] poor in the State of Connecticut . . . .” Doe v. Maher, supra, 40 Conn. Sup. 412-13.26
*669B
COMMON LAW
Although our early statutes are very instructive in interpreting the legal traditions of Connecticut that are incorporated as rights in our state constitution, they are not the only source of these implied rights. “In Connecticut constitutional law, it is well established that several rights now denominated as constitutional law had well-recognized common law antecedents.” E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Albany L. Rev. 259, 261 (1989). To gain a complete understanding of the meaning of our constitutional history, therefore, we must also examine the early common law of Connecticut.
Examining this common law, however, is not as simple as pulling a digest of decisions from the bookshelf. Although Connecticut was the first state to publish any of its judicial decisions,27 “at no time until 1784 was it required that judicial decisions be in writing or that they be published in any manner, nor was either thing done.” L. Lewis, supra, 27 Conn. B.J. 423. In 1784, however, the state legislature required all Superior Court judges to issue written decisions, and “the complete change from a system entirely of statute law to one of common law developed by judicial decisions becomes apparent.” Id., p. 424. Despite this transformation, very few written decisions of Connecticut courts are available from the era prior to 1818. The decisions of the Superior Courts and the Supreme Court of Errors were first published in Kirby’s Reports in 1789, a mere twenty-nine years before the adoption of the 1818 constitution. There is no official record of *670judicial decisions for the preceding period of approximately 150 years.28 In order to determine the common law in the state during that period, therefore, we must look not only to the sparse case law that is available but also to other sources. J. Root, 1 Root’s Reports, p. ix (1789-93).
Superior Court Judge Jesse Root, a prominent member of the judiciary in the eighteenth and early nineteenth centuries, defined the common law in his introduction to the first of two volumes of court reports, which covered decisions rendered by the Superior Court and the Supreme Court of Errors between July, 1789, and June, 1793.29 Judge Root defined the common law of this state to include (1) “the adjudication of the courts of justice and rules of practice”; (2) “usages and customs, universally assented to”; and (3) what could be loosely summarized as “natural law.” Id., pp. ix-xiii. Judge Root’s understanding of our early common law is particularly instructive on the issue of the incorporation of the common law into the open-ended preamble of the constitution of 1818. Not only was Judge Root one of the outstanding legal scholars of his day, but he was also a prominent delegate to the *671constitutional convention.30 W. Horton, The Connecticut State Constitution, supra, p. 12. Each of Judge Root’s three identified sources of common law reveals the tradition of this state of providing minimal subsistence to its destitute inhabitants.
1
Adjudication of the Courts
Judge Root recognized the difficulty of identifying the common law as it had developed in decisions of Connecticut courts. He pointed out that “we have no treatises upon the subject, and but one small volume of reports containing a period of about two years only, and a treatise lately wrote by Mr. [Zephaniah] Swift, containing a commentary on the government and laws of this state. . . .”31 1 J. Root, supra, p. xiii.
*672Notwithstanding the small number of published opinions of the courts, the only two legal scholars who wrote on the subject prior to 1818 clearly indicated that the poor had a right to minimal subsistence. Chief Justice Swift defined the law of Connecticut with respect to the rights of poor people in his 1795 treatise. His words are illuminating: “[E]ach town [is] obliged to take care of and maintain their own poor, [and] this [is] a principal part of the duty of the selectmen. The selectmen are bound to provide necessaries for all the inhabitants of the town, who are incapable of supporting themselves. Towns are obliged to support their respective inhabitants, whether living in the town to which they belong, or any other town, either with or without a certificate, who may need relief.” 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 119.
Although Judge Root was a conservative member of the judiciary,32 he, unlike the majority in this case, recognized government’s obligation to the poor. In his introduction to the published cases of 1789 through 1793, Judge Root wrote that “[i]t is the duty of every government to protect and to provide for the poor; the laws of the state . . . ordain . . . that every town shall take care of, provide for and maintain, its own poor.” (Internal quotation marks omitted.) 1 J. Root, supra, p. xxviii. Judge Root explained that “[t]he poor and indigent in all countries, call not only for private charity, but for support and assistance from the government, and to give scope to the exercise of benevolence, the most noble and godlike virtue . . . .”33 (Emphasis added.) Id.
*673Moreover, Judge Root pointed out that Connecticut law required the government to provide a safety net of minimal subsistence for the poor even when state laws otherwise allowed towns to escape the financial burden of caring for the poor or when there was a dispute. Under state law, a town faced with supporting an indigent person who had recently arrived could ask him to leave. The town could warn such a person to depart within the first three months of that person’s initial settlement in the town. Acts and Laws of the State of Connecticut (1786) p. 193. As Judge Root recognized, however, in such cases the town still was required to provide for the poor person, but the state *674would reimburse the town for the costs it had incurred. 1J. Root, supra, p. xxix. Indeed, even individuals who were not state residents were provided for by the town at the expense of the state. Id. In sum, our common law would not allow an indigent person to want for those items necessary for humane survival.
The majority makes much of the fact that no Connecticut case published prior to 1818 states in explicit terms that the poor have a right to minimal subsistence. There are several reasons, however, why this dearth of case law is not dispositive. First, this right of the poor had been so ingrained in the history of the Connecticut colony that, by the time the decisions of our courts were first published, no one questioned it. The Ludlow Code, which was published in 1650, memorialized the right in written form.34 The colony did not begin to publish the decisions of its Superior Court and Supreme Court of Errors until 1784. The right, therefore, had been formally in existence for at least 134 years before the development of this state’s case law. By that time, there was nothing left to litigate except disputes between the towns that were responsible for providing for the needs of a particular poor person.35 Clearly, a right with so rich a history would not have been the subject of litigation in the late eighteenth and early nineteenth centuries. Moreover, as Judge Root pointed out and as I previously mentioned, very few cases were published between the years 1784 and 1818. The fact that none of the few cases that actually were published involved an action brought by a poor person to enforce the right cannot be dispositive of whether that right existed at all.
Second, I do not suspect that there was a Revolutionary War era equivalent of legal aid for the poor that *675would have represented poor people who had been denied subsistence. Rather, it is more likely that a poor and impoverished resident would have sought aid from a selectman in his or her town, who was the person designated by statute to administer relief to the poor. This method of caring for the poor was prescribed by Sir Edmund Andros in 1687.36 E. Capen, supra, p. 41. Andros and his council “made the selectmen overseers of the poor and authorized them, with the consent of any two justices of the peace ... to levy a tax rate for the support of the poor.” Id. The selectmen’s duty to provide for the poor was perpetuated by statute and was described as follows: “The selectmen are overseers of the poor . . . and it is their duty to provide all articles necessary for their subsistence, for all paupers belonging to the town, and they must provide for such support as will insure good and sufficient food, clothing, comfortable lodgings, and suitable care and medical attendance in sickness .... This is the most important branch of the duties of selectmen, and should be discharged with a proper regard to economy or the interests of the town, and the claims of humanity in behalf of the indigent, the distressed, and the wretched . . . .” J. Joy, Connecticut Civil Officer (19th Ed. 1948) p. 322.
Third, even if a poor person had decided to sue a town to enforce his or her right to minimal subsistence, that person would not have brought the case to the Superior Court, but rather to the justices of the peace.37 *676Indeed, early published decisions of this court make clear that, in accordance with English jurisprudence,38 a local justice of the peace had jurisdiction to rule on cases involving poverty relief. In Lyme v. East Haddam, 14 Conn. 394 (1841), for example, this court con*677sidered whether the justice of the peace of Colchester had had jurisdiction to decide a case brought by the town of East Haddam to recover the cost of supporting an indigent family. The justice of the peace had found in favor of East Haddam, and the defendant, the town of Lyme, appealed to the Superior Court, which affirmed the decision of the justice of the peace. On appeal to this court, the town of Lyme argued that the case should have been brought to a justice of the peace in a different town. This court concluded, however, that a justice of the peace located “within a county where one of the parties dwelt” had jurisdiction to decide the case. Id., 399-400. Similarly, in Trumbull v. Moss, 28 Conn. 253 (1859), the plaintiff, a ship owner who had supported an ill and indigent sailor, initially brought his action before a justice of the peace. The town of Stonington, which was held liable by the justice of the peace for the costs expended by the ship owner, appealed to the Superior Court, which reserved judgment while awaiting the advice of this court. Id., 254. This court agreed with the decision of the justice of the peace, and advised judgment for the plaintiff. Id., 256. Although the justices of the peace had initial jurisdiction to adjudicate claims regarding the poor, I know of no written opinions by these justices that we might peruse. Furthermore, I take judicial notice, with absolute certainty, that if these justices did issue written opinions, they were not published. Therefore, the absence of any published case law between 1637 and 1818 in which the right of the poor to subsistence was litigated is totally irrelevant to this court’s analysis of the existence of such a right.
Furthermore, despite the lack of evidence of the existence of this right in the form of cases brought by the poor themselves, there are cases on record that involved the administration of this right. These cases typically *678were disputes between towns—one town would sue another in an attempt to recover the costs it had incurred in caring for an indigent person or family who actually resided in the other town. See, e.g., Trumbull v. Moss, supra, 28 Conn. 253 (holding town of Stoning-ton liable for support of indigent sailor who had been taken there); New Milford v. Sherman, 21 Conn. 101 (1851) (holding town of Sherman liable for costs incurred by New Milford in supporting indigent Sherman resident); Salisbury v. Harwinton, 2 Root (Conn.) 435 (1796) (holding that issue of whether town was liable for support of indigent person was question for jury); see also Lyme v. East Haddam, supra, 14 Conn. 394 (holding that justice of peace had proper jurisdiction to decide which town was liable for support of indigent and affirming judgment); Lyme v. New London, Superior Court, Norwich (March 23, 1773), reported in 4 American Legal Records, Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942) p. 226 (American Legal Records); East Windsor v. Wethersfield, Superior Court, Hartford (December 22, 1772), reported in 4 American Legal Records, supra, p. 1. Significantly, however, even in these cases, the right of the poor to receive subsistence from the government was never in dispute. Indeed, these cases reveal that the towns had understood their obligation to provide subsistence to the needy and had done so.
Moreover, the majority acknowledges, as it must, that there are records of at least two persons who petitioned the General Assembly for aid—Mary Bate and John Pratt. In the case of Mary Bate, the legislature in 1717 directed that “the town of Haddam take care of [her] according to the direction of the law concerning the poor of the town.”39 In the case of John Pratt, *679the legislature in 1716 awarded sums for his subsistence “and cure of his lameness.”40
The majority dismisses these petitions as mere “appeals to legislative grace,” rather than as appeals to a court of law in an attempt to enforce a fundamental right. This characterization, however, ignores the fact that at this time in Connecticut history, there was only one branch of government—the legislature of early Connecticut was also its judiciary.41
2
Usages and Customs
A second component of the common law, according to Judge Root, was the “usages and customs, universally assented to and adopted in practice by the citizens *680at large.” 1 J. Root, supra, p. xi. Judge Root wrote: “So these unwritten customs and regulations which are reasonable and beneficial, and which have the sanction of universal consent and adoption in practice, amongst the citizens at large or particular classes of them, have the force of laws under the authority of the people, and the courts of justice will recognize and declare them to be such, and to be obligatory upon the citizens as necessary rules of construction and of justice. The reasonableness and utility of their operation, and the universality of their adoption, are the better evidence of their existence and of their having the general consent and approbation, than the circumstance of its being forgotten when they began to exist.” Id., pp. xii-xiii.
The practice of government to provide for the poor in this state is well documented in recorded history. “During the early colonial period [the principle that poor relief was a town matter] was so fully carried out in both the Connecticut and the New Haven colony, that in the town records are the earliest statements regarding poor relief. Thus in March, 1640 . . . the town of Hartford voted to set aside twenty acres on the east side of the Connecticut river ‘for the accommodating of several poor men that the town shall think meet to accommodate there.’ ” E. Capen, supra, pp. 22-23. Indeed, the practice of this state of caring for the poor was documented for a period of at least 175 years before the adoption of the constitution of 1818.
Christopher Collier, the Connecticut state historian and a professor of history at the University of Connecticut, testified in the Hilton case with respect to our history of supporting the poor. According to Professor Collier, Connecticut was unique in placing this obligation on government. While other colonies and states allowed private charities to fulfill the basic needs of their poor, Connecticut did so as a matter of govern*681mental responsibility and obligation.42 The history, usage and customs of Connecticut, therefore, imparted into our 1818 constitution an affirmative obligation on the part of the state and its towns to provide minimal subsistence for the poor.
3
Natural Law
Finally, it is important to consider the third component recognized by Judge Root as a source of our early common law: the legal and philosophical theory known today as natural law.43 Although this theory has fallen into disfavor since the era of Judge Root, we nevertheless must examine its tenets in order to determine what legal notions were in the minds and hearts of the drafters of our first formal constitution.
Natural law occupied a prominent position in our colonial jurisprudence. The Fundamental Orders were *682premised on natural law,44 as were the laws of the colony of Connecticut of 1672.45 According to Professor Collier, “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); see also Doe v. Maher, supra, 40 Conn. Sup. 423. Indeed, many of our early decisions supported the legal principle that the government must be guided by fundamental notions of what is morally right. See, e.g., Booth v. Woodbury, 32 Conn. 118, 127 (1864) (“principles of natural justice”); Welch v. Wadsworth, 30 Conn. 149, 155 (1861) (“But the power of the legislature in this respect is not unlimited. They can not entirely disregard the fundamental principles of the social compact. Those principles underlie all legislation, irrespective of constitutional restraints, and if the act in question is a clear violation of them, it is our duty to hold it abortive and void.”); Goshen v. Stonington, 4 Conn. 209, 225 (1822) (“vested rights”).
Judge Root addressed the natural law obligation of the government to provide for the poor: “[T]he highest character given of any ruler on earth is, that he judg-eth the people in his righteousness, and the poor with judgment; that he delivereth the needy when they cry, and the poor that hath no helper; that he dealeth bread to the hungry, and delivereth him that is ready to per*683ish.” 1J. Root, supra, p. xxviii. Furthermore, in Judge Root’s view, natural law of the late eighteenth and early nineteenth centuries “define[d] the obligations and duties between husbands and wives, parents and children, brothers and sisters, between the rulers and the people, and the people or citizens towards each other: This 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 and illustrate the principles of this law . . . .” (Emphasis added.) Id., pp. x-xi.
Indeed, the framers of our 1818 constitution incorporated this concept directly into that document. Article first, § 1, provides that “[a]ll men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive government emoluments or privileges from the community.” This social compact is deeply entrenched in this state’s history. It first was articulated in the Fundamental Orders of 1639, and was repeated in the Declaration of Rights of 1650.
Professor Collier discussed the significance of this theory during his testimony in the Hilton case. He explained that the social compact not only establishes government, but defines and limits the authority of government. It is a contract, in fact, between the people and their government. The substance of this contract today, which has been carried forward from the Declaration of Rights in 1650, is set forth in article first, § 1, of the state constitution. According to Professor Collier, the affirmative obligation of the state to pro*684vide subsistence to the poor was part of the fabric of the social compact in Connecticut.46
C
THE APPROACHES OF SISTER STATES
As the foregoing analysis demonstrates, Connecticut has not only a rich constitutional history, but also a rich history of providing for its poor and impoverished citizenry. Because this history is unique to this state,47 the holdings of courts in other jurisdictions, and the interpretations they have given to their own state constitutions, are of limited value in determining the contours of our own state charter of liberty. Nevertheless, because the majority places great significance upon the decisions of courts in sister states, it is necessary to address them. In an attempt to gather support for its conclusion that the Connecticut constitution does not include a right to minimal subsistence, the majority asserts that: (1) “Although only a few states have explicitly addressed the question, with one exception, other state courts unanimously have refused to recognize affirmative state constitutional rights to subsistence benefits, holding instead that any obligation to support the poor is entirely statutory”; (2) “This is true even in states with explicit constitutional provisions regarding care for the poor”; and (3) “[T]he courts of many states have indicated in dicta that the right to public assistance is wholly statutory.” None of these three statements is completely accurate, and most of the cases relied on by the majority do not support the proposition asserted.
1
The majority initially states that, with the exception of New York, all state courts that have confronted the *685issue “unanimously have refused to recognize affirmative state constitutional rights to subsistence benefits, holding instead that any obligation to support the poor is entirely statutory.” The majority cites cases from three jurisdictions in support of this point. The assertion itself is incorrect, and does not accurately represent the holdings of those courts.
First, the assertion itself is incorrect. The majority suggests that no other state court has ever recognized a state constitutional right to minimal subsistence. The Supreme Courts of Alabama, Montana and Kansas, however, have done exactly that.
The Alabama Supreme Court recognized an affirmative state constitutional duty to provide for the poor in Childree v. Health Care Authority, 548 So. 2d 419 (Ala. 1989). In that case, the issue was who would pay for the hospital care of indigent citizens of Madison County. The county had referred indigents to Huntsville Hospital, which had incurred $700,000 in unpaid medical bills. As the Alabama Supreme Court recognized, the only question was “which of three entities— the State of Alabama, the Department of Mental Health, or Madison County—is financially responsible for the costs incurred . . . .” Id., 420. The court held that “the costs of private care of a person in the custody of the Department of Mental Health must be assessed against that person or his/her family, or, in the alternative, the county. In the instant case, these persons are financially incapable of defraying the costs involved for care and treatment. Ala. Const. 1901, Art. IV, § 88, states that ‘[i]t shall be the duty of the legislature to require the several counties of this state to make adequate provision for the maintenance of the poor’; this places on Madison County the duty of caring for its indigent citizens.” (Emphasis added.) Id., 421.
*686In Butte Community Union v. Lewis, 229 Mont. 212, 745 P.2d 1128 (1987), the Montana Supreme Court also recognized such an affirmative duty of caring for the poor. In that case, the court was called on to determine the constitutionality of statutes strikingly similar to those in the case before us. The statutes limited able-bodied persons without dependent children to no more than two months of nonmedical general relief assistance within a twelve month period, and the plaintiffs challenged the scheme as'unconstitutional. The Montana Supreme Court held that “the State Constitution imposes upon the legislature a duty to provide necessary economic assistance to inhabitants who need societal aid by reason of three disparate conditions over which they have no control, age, infirmity, or misfortune.”- (Emphasis added.) Id., 1129. The court then declared the revised statutes unconstitutional: “The legislature, by its finding, has completely eliminated from economic assistance misfortunate able-bodied persons who may have need for the aid of society. The finding, therefore, is in flat opposition to Art. XII, § 3 (3) of the Constitution, that all misfortunate persons who have need for the aid of society shall receive economic assistance through legislative action. The legislature cannot escape its constitutional duty by defining out the persons to whom the constitutional protection attaches. To allow such a finding to stand is tantamount to allowing the legislature to amend the Constitution by its own action .... On their face, the 1986 amendments do not meet the duty imposed on the legislature to provide for the misfortunate under Art. XII, § 3 (3) of the Montana Constitution.” Id., 1130-31.48
In addition, the Supreme Court of Kansas has recognized such an affirmative duty. In Caton & Starr v. Osborne County, 110 Kan. 711, 714, 205 P. 341 (1922), *687a case not cited by the majority opinion, the Supreme Court of Kansas held that it is “the duty of the [town] overseer to care for the poor, and to see that they are given relief, and it is made the duty of the board of county commissioners to raise money and pay for such care and relief. . . . The constitution enjoins this care and commands that counties of the state shall provide for the poor and those who have claims upon the sympathy and aid of society. ([Kan. Const.] Art. 7, § 4). When an overseer of the poor finds a poor person in need of care, it is his duty to furnish him prompt and proper relief.” (Citation omitted.)
Second, in addition to overlooking the holdings of these courts, the majority has either misread or misstated the holdings of the cases that it does cite. The majority cites cases from Illinois, Delaware and New Jersey. The Illinois case, People v. Lyons, 374 Ill. 557, 30 N.E.2d 46 (1940), was based on an interpretation of the Illinois constitution of 1870, which was in effect at the time of the court’s decision in 1940. In 1970, however, Illinois adopted a new constitution. The new constitution includes a specific provision reciting that a purpose of the new document is to “eliminate poverty and inequality.” Illinois Const., preamble. This language did not exist at the time of the court’s decision in Lyons. As two constitutional commentators noted, “[t]he Preamble of the 1970 Constitution includes the provisions of the Preamble of the 1870 Constitution and in addition emphasizes the State’s role in eliminating poverty and inequality and assuring legal, social and economic justice.” (Emphasis added.) R. Helman & W. Whalen, Constitutional Commentary, reprinted in Ill. Ann. Stat. constitution, art. 1 (Smith-Hurd 1993) p. 26. The holding of the court in Lyons, which was based upon the 1870 document, is therefore not determinative of the meaning of the constitution now in effect in Illinois. Indeed, this holding of the Lyons decision *688apparently has not been cited by any Illinois court for nearly forty years, or since the adoption of the new Illinois constitution.49
The Delaware case, Tilden v. Hayward, Docket No. 11297, 1990 LEXIS 140 (Del. Ch. Sept. 10, 1990), is a decision from a Delaware Court of Chancery, which held that the Delaware constitution does not provide a right to financial assistance for the purpose of securing housing. That case is distinguishable from this case for two reasons. First, the plaintiffs in Tilden only argued, and the court only considered, whether the due process clause of the state constitution provided a “substantive due process” right to financial assistance for housing. The court concluded that the prohibitive nature of that clause’s language—which the court stated “is the equivalent of ‘The State shall not’ id.;—could not be interpreted as requiring affirmative action by the state. Id. The preamble of the Connecticut constitution, however, is phrased in affirmative terms and endows Connecticut citizens with certain rights. Second, the Delaware court expressly recognized that other state constitutions do, in fact, provide such a right, and noted that the language of a state constitution and its history are important factors to consider in determining whether such a state constitutional right exists. As I have indicated, the language and history of our Connecticut constitution reveal the undeniable existence of such a right.
Finally, the two New Jersey cases cited by the majority are not helpful. Both cases, L.T. v. Dept. of Human Services, 264 N.J. Super. 334, 624 A.2d 990 (1993), and Franklin v. Dept. of Human Services, 225 N.J. Super. 504, 543 A.2d 56 (1988), were decided by the Appellate Division, a mid-level appellate court in *689New Jersey.50 On appeal in each case, the Supreme Court of New Jersey explicitly avoided the constitutional issue and decided the case on other grounds.51 Indeed, in the later case, the Supreme Court, noting the despicable conditions facing the homeless, left open the question of whether a state constitutional right existed. L.T. v. Dept. of Human Services, 134 N.J. 304, 324, 633 A.2d 964 (1993).52 It is far from clear, therefore, whether the New Jersey constitution does or does not protect a fundamental right to minimal subsistence.
*690Even if the holdings of the Appellate Division are viewed as a proper interpretation of the New Jersey-constitution, however, they are of extremely limited value in helping us to interpret our own Connecticut constitution. The constitutional clauses in issue in the New Jersey case, which resemble portions of the Declaration of Independence, merely set forth vague ideals about individual rights, rather than acknowledging affirmative rights of the people. The preamble to the Connecticut constitution, on the other hand, states in concrete terms that that document is meant to enshrine “the liberties, rights and privileges which [the people of Connecticut] have derived from their ancestors . . . Moreover, there is no indication that New Jersey has the rich and lengthy history of providing for the poor that Connecticut does. Therefore, the mere fact that a mid-level appellate court in New Jersey has failed to recognize such a right in the New Jersey state constitution cannot be dispositive of whether this state’s constitution protects such a right.53
*6912
The majority also contends that every state that has an explicit constitutional provision regarding the poor, with the exception of New York,54 has declined to recognize an affirmative constitutional right to subsistence benefits. The majority cites the law of only one state, Kansas, for this sweeping proposition. As I pointed out in the previous subsection, the Supreme Courts of Alabama, Montana and Kansas have, in fact, given effect to affirmative constitutional provisions regarding care for the poor. The majority, therefore, is incorrect in asserting that no state except New York has done so.55 Moreover, the majority has misinterpreted the only case upon which it relies.
*692In Bullock v. Whiteman, 254 Kan. 177, 865 P.2d 197 (1993), the Kansas Supreme Court explicitly avoided the holding that the majority attributes to it. At issue in that case were revisions to the state general assistance and medical assistance programs. The effect of the revisions was to eliminate an “elderly” classification of persons eligible for general assistance, to extend a requirement of disability from one to six months, and to reduce the types of medical benefits available. The plaintiffs claimed that the changes violated the state constitution.56 The Kansas Supreme Court, noting that “this is a situation where the definition of needy has been altered, not a circumstance where an admittedly needy individual is denied assistance,” held that the revisions did not violate the state constitution. (Inter*693nal quotation marks omitted.) Id., 204. The court, however, expressly stated that “[t]he result reached herein does not mean that there is. no point at which reduction in benefits and increases in eligibility requirements would ever be violative of Article 7, § 4 of the Kansas Constitution.” Id., 206. This refusal to revisit the issue, therefore, left intact the Kansas Supreme Court’s earlier holding in Caton & Starr v. Osborne County, supra, 110 Kan. 711, which held that the state constitution does require provision for the poor. The majority, therefore, is incorrect when it asserts that no state except New York has recognized an affirmative constitutional duty to provide for the poor.57
3
Finally, the majority cites several cases in support of its assertion that “the courts of many states have indicated in dicta that the right to public assistance is wholly statutory.” To the credit of the majority, it recognizes that the language in these cases is merely dicta. Unfortunately, the majority apparently overlooks the fact that in several of these cases, the language quoted, even though dicta, has absolutely nothing to do with the state constitution or the scope of state constitutional requirements regarding care for the poor.
Several of the cases cited by the majority do not even mention the state’s own constitution. See, e.g., Orrington v. Bangor, 142 Me. 54, 46 A.2d 406 (1946); *694County of Lander v. Board of Trustees, 81 Nev. 354, 403 P.2d 659 (1965); New Hampshire Children’s Aid Society v. Morgan, 107 N.H. 246, 221 A.2d 238 (1966); Merrimack v. Derry, 107 N.H. 212, 219 A.2d 703 (1966); Sioux Valley Hospital Assn. v. Bryan, 399 N.W.2d 352 (S.D. 1987); Strutz v. Perkins County, 69 S.D. 270, 9 N.W.2d 500 (1943); St. Johnsbury v. Granby, 124 Vt. 367, 205 A.2d 422 (1964). To the extent that these cases discuss a state’s obligation to support the poor at all, they do so in the context of comparing the statutory obligation to a common law obligation, such as one would vindicate by bringing a common law action in contract or assumpsit.58
*695Furthermore, several of the cases cited by the majority that mention a constitutional directive are very plainly referring to the federal constitution, not the state constitution. In Kratzer v. Dept. of Public Welfare, 85 Pa. Commw. 318, 481 A.2d 1380 (1984), for example, the Commonwealth Court of Pennsylvania relied on federal precedent for its assertion that there is no federal constitutional right to receive public assistance. The parties in that case apparently never argued that the state constitution guaranteed such a right, and the court, in deciding the case, never mentioned the state constitution. Similarly, although the Nebraska Supreme Court alluded to constitutional requirements in Elliott v. Ehrlich, 203 Neb. 790, 280 N.W.2d 637 (1979), the court’s decision can only be read as standing for the proposition that, for purposes of the equal protection and due process clauses of the federal constitution, welfare benefits are not a fundamental right that would trigger strict scrutiny.59 Furthermore, it is obvious that the court must *696have been referring to the federal constitution in Alim v. Graham, 8 Ariz. App. 336, 446 P.2d 240 (1968), and Division of Aid for the Aged v. Hogan, 143 Ohio St. 186, 54 N.E.2d 781 (1944). In both of these cases, the court cited the decisions of other states for support of its dicta regarding a constitutional duty. If the court had been discussing its own state constitution, it is unlikely that it would have interpreted that document by referring exclusively to the holdings of courts in other states.60
Finally, in Mary Larming Memorial Hospital v. Clay County, 170 Neb. 61, 65, 101 N.W.2d 510 (1960), the Nebraska Supreme Court noted only that the state constitution did not prohibit the legislature from requiring counties to provide for the poor. The court did not address the question of whether the state constitution prohibited the legislature from eliminating all assistance for the poor.
D
To summarize, the right of the poor to minimal subsistence is firmly rooted in the statutory and common *697law of this state prior to 1818. This right was implicitly incorporated into the constitution through the preamble of our 1818 constitution. The decisions of courts in sister states, to the extent they are relevant at all, do not cast doubt upon this proposition. In my view, the plaintiffs in these cases should be able to enforce their rights through article first, § 10.61
*698IV
Constitutional Scrutiny
Judicial evaluation of a constitutional right, and of whether that right may have been infringed in a particular case, inevitably turns to a determination of what degree of “scrutiny” that right demands. Because of the nature of the right to minimal subsistence, and the facts of these cases, I believe this issue need not be decided here. The constitutional definition of this right is minimal subsistence—in other words, the minimum amount of shelter, food and essential medical care necessary for a human being to survive in a humane manner. This right does not require the government to supply the poor with a private apartment, but merely a simple cot sheltered from the elements. This right does not require the government to supply the poor with a nightly dinner of steak and potatoes, but merely a bowl of soup. Finally, this right does not require the government to provide the poor with cosmetic surgery, but only essential medical care. Framed in this manner, it becomes easy to understand, at least for the purpose of this case, why any particular degree of “scrutiny” is not relevant. Either the government has provided enough assistance for a human being to survive in a humane manner, or it has not.
This is not to say, however, that any condition the government attempts to attach to the right may not be the subject of scrutiny. Indeed, the type and degree of conditions which the state places upon this right may be the subject of future litigation. In these cases, however, the issue of whether the government properly required indigent persons to satisfy specific affirmative conditions is not before us. The plaintiffs here do not suggest that the towns must offer shelter, food and medical care to persons who are able-bodied and for *699whom employment is readily available. They do not suggest that the towns are prohibited from conditioning the receipt of such benefits on participation in programs such as workfare or job training. The plaintiffs here simply argue that the towns may not refuse to help people who desperately need it, who are willing and able to satisfy all reasonable conditions in order to get it, and who cannot survive in a humane manner without it. Because the questions presented by the Hilton and Moore cases do not require us to engage in any form or degree of judicial scrutiny, we should leave this issue to another day.
Accordingly, I would conclude that Spec. Sess. P.A. 92-16 is unconstitutional insofar as it does not require towns to provide minimal subsistence to destitute, impoverished persons when they are in desperate need of it. Specifically, I would hold that Spec. Sess. P.A. 92-16 is unconstitutional to the extent that it: (1) allows towns to refuse to provide minimal subsistence after only nine months of a twelve month period, and (2) allows towns to refuse to provide adequate shelter to those individuals who need it in order to survive in a humane manner.
It always remains within the authority of the legislature, of course, to make available a greater level of benefits to the poor and needy in order to help them live a more humane existence. Indeed, as citizens of a civilized and relatively affluent society, we may demand that our elected officials provide something more than the very minimum degree of assistance. This, however, is a matter for the legislature. Our state constitution requires only that our towns not allow their residents to suffer from hunger, or from the bitter cold, or from a lack of essential medical care.
*700V
Conclusion
Connecticut has a rich and lengthy history of requiring the government to provide for the indigent. Our concern with providing assistance to this class of persons can be traced back to the earliest days of this colony in the middle of the seventeenth century. This history reveals that the government of Connecticut has an undeniable obligation to provide, and the poor have an undeniable right to receive, those things that are absolutely essential for humane survival: shelter, food and essential medical care.
This right to minimal subsistence is one of the “liberties, rights and privileges which . . . have [been] derived from [our] ancestors.” As such, it is incorporated in the preamble of our state constitution and protected from infringement by article first, § 10, of that charter of liberty. Indeed, this right to minimal subsistence is a right so fundamental that without it no other guaranteed rights, explicit or implicit, can be enjoyed.62 It is the right to life itself—the right to subsistence, sufficient for humane survival.
*701Yet today the majority eviscerates the lifeline that the poor people of this state have depended upon for 350 years. No longer will the poorest of the poor have a safety net that will allow them to survive in a humane manner. No longer will these indigent persons be able to turn to their government for the protection of their well being. In one stroke of a pen, the majority dismantles our rich constitutional jurisprudence that Chief Justice Swift described in his 1795 treatise on the law: “[T]he law has made provision for the support of the poor, so that every one may know where to call for his bread in the hour of want.” (Emphasis added.) 1 Z. Swift, A System of the Laws of the State of Connecticut, supra, p. 121.
The majority’s holding is contrary to the clearly enunciated traditions and law of this state. To hold in this case that we, as a civilized society, are not obliged to offer any assistance as we watch our fellow human beings suffer and sometimes perish, is to ignore our history, our moral obligation, our humanity—and our state constitution.
I dissent.
The plaintiffs in these cases do not allege that the state or towns have abrogated their right to receive essential medical care. It is clear, however, that essential medical care is a vital component of the fundamental right to minimal subsistence. Therefore, I refer to the right to minimal subsistence as including shelter, food and essential medical care even though medical care has not been raised as an issue.
The plaintiffs in Hilton brought, and the trial court certified, that case as a class action on behalf of themselves and similarly situated individuals in the city of New Haven who were then or would in the future become homeless. The representatives of the class are Herbert Hilton, Steven MeEwen, Bobby Walker, Star Williams, Deidre Colburn and Janet Cardin, homeless individuals who all have been denied shelter.
The plaintiffs in Moore are Hamilton Moore, Francisco Rivera, Russell Scudder, William Simpson and Enrique Velez, poor people who otherwise had complied with the requirements to receive general assistance benefits; see General Statutes (Rev. to 1991) § 17-273b; but whose benefits were terminated for a three month period in accordance with No. 92-16 of the 1992 Public Acts, Special Session, May, 1992. See footnote 3 of this dissent. Although the Moore plaintiffs sought to have this action certified as a class action, the trial court deferred action on class certification.
Citations herein to Spec. Sess. P.A. 92-16 may refer, as the context requires, either to § 17-273b or § 17-273d, as those statutes were amended by the public act, or to the text of the public act itself.
The plaintiffs in the Hilton case also argue that, apart from violating the constitutional right to shelter, the city of New Haven has violated § 17-273d, as it incorporates Spec. Sess. P.A. 92-16, by failing to provide sufficient space in city shelters for all of the homeless who qualify under the amended statute.
L. Tribe, American Constitutional Law (2d Ed. 1988) p. 779; see footnote 61 of this dissent.
The plaintiffs in Moore initiated the action before their benefits were terminated, seeking declaratory and injunctive relief against Bridgeport to prevent the city from implementing the provisions of Spec. Sess. P.A. *64892-16. The trial court, acting ex parte, granted a temporary restraining order to that effect to preserve the status quo until it could hold a hearing on the application for a temporary injunction. After a two day hearing, the trial court denied the temporary injunction and vacated its earlier restraining order. It was from that minimal record that the plaintiffs appealed directly to this court pursuant to General Statutes § 52-265a. See footnote 3 of the majority opinion; see generally part I B of this dissent.
Statistics of death among the unsheltered homeless are not available. See footnote 11 of this dissent. Nevertheless, I take judicial notice of the recent deaths of two homeless individuals that occurred while this action was pending before this court. In Stratford, a homeless man in his sixties was found beaten and stabbed to death in an ill-kempt state park known as a “haven for the homeless.” (Internal quotation marks omitted.) P. Dilger, “Homeless Man Found Slain in Park,” New Haven Register, May 15,1995, p. 1. In Middletown, a fifty-one year old homeless man drowned after he *650fell asleep on, and then tumbled off, a ledge overlooking the Connecticut River. L. Held, “Remembering a Friend Called ‘Night Train,’ ” The Mid-dletown Press, May 11, 1995, pp. Al, A8. Although these newspaper accounts do not reveal whether these men were without shelter due to the failure of the respective towns to maintain sufficient shelters for the homeless, common sense suggests that when people are forced to sleep on the streets, some deaths inevitably will result.
In accordance with its formulation of the right, which requires that a person demonstrate an attempt to comply with the relevant statutory provisions, the concurrence concludes that only a limited portion of the evidence before the trial court is relevant to the constitutional claims of the plaintiffs. Rather than considering the testimony of the eight homeless individuals and several other experts who testified in detail in 1989 about the extent of the problem of homelessness in New Haven and the devastating adverse effects of being homeless and being denied emergency shelter, the concurrence considers only the testimony of the six individuals who testified after the enactment of Spec. Sess. P.A. 92-16. As I have indicated, I disagree with the concurrence’s interpretation of the state constitutional right, and with the evidentiary burden that this formulation forces upon a poor person who seeks to enforce the right.
Nevertheless, even under the formulation of the concurrence, it appears that at least one plaintiff has satisfied this burden of proof. Thomas Baines is a member of the certified class of plaintiffs in Hilton, which was identified as “[a]Il individuals in the City of New Haven who are now or in the future will become homeless, i.e., without a place to live on a temporary or permanent basis, and who request emergency shelter. "Baines testified in 1993, after the passage of Spec. Sess. P.A. 92-16, that without a state provided shelter, he would be forced to live in abandoned buildings, cars or a cemetery. He also testified that he had tried to obtain general assistance benefits, and thereby qualify for shelter under Spec. Sess. P.A. 92-16. He was turned down, however, for the sole reason that a typographical error on his prison release record, printed by the New Haven police department, had misspelled his name as “Bams.”
Certainly, even the concurrence would agree that Baines needed shelter and that he had failed to qualify under the statute for reasons beyond his control. The concurrence, however, seems to dismiss Baines because he failed to appeal the city’s denial of general assistance benefits. Apparently, the concurrence holds that a person not only needs to attempt to comply with the statute, but also must exhaust his administrative and judicial remedies by appealing adverse decisions with respect to the statutory requirements. Only after doing so, according to the concurrence, may the person invoke his constitutional right to minimal subsistence. I cannot help but wonder, however, what such a person would do for food and shelter during that lengthy appeal process.
I do not attempt to recount every procedural event that followed the filings of these two actions by the plaintiffs. The majority sets forth these procedural histories in sufficient detail, and repeating them in detail here would serve no useful purpose. Rather, I limit my discussion to the pertinent facts and procedural details that resulted directly in the termination of minimal subsistence to the plaintiffs.
Carmen Rodriguez, the homeless coordinator of New Haven, testified that, according to a survey conducted by her office in April, 1993, a substantial percentage of the homeless in New Haven do not qualify for emergency shelter under § 17-273d, as that statute was amended by Spec. Sess. P.A. 92-16. Her study indicated that of the seventy-nine homeless persons interviewed, only thirty-seven were recipients of general assistance and only two met the specific shelter eligibility criteria under Spec. Sess. P.A. 92-16.
At oral argument and in its brief filed on August 30, 1994, the city of New Haven advanced the proposition that the unsheltered homeless suffer this condition as a result either of their own fault or their own choice. Moreover, the city argued that the plaintiffs in the Hilton case have greatly exaggerated the severity of the living conditions of the homeless. The implication the city sought to make, of course, was that unsheltered homelessness is not a life threatening condition. These arguments defy common sense. They suggest that a human being would voluntarily submit to living on the streets during the winter, surrounded by garbage and debris and subject to predatory crime and personal danger. These propositions are wholly without merit.
Homelessness goes hand in hand with a high rate of mortality. The United States Interagency Council on the Homeless reported in 1991, for example, that “the death rate for homeless males in each age group is roughly five times that of non-homeless males.” Interagency Council on the Homeless, 1990 Annual Report (1991) p. 34. The report went on to emphasize that the results reported were obtained from studies of homeless individuals living in shelters, and that “the non-serviee-using homeless” are at even greater risk. Id., p. 36. In addition, untold numbers of homeless persons have frozen to death. See, e.g., M. Hombs, American Homeless (1990) p. 28. Statistics of death among the unsheltered homeless, however, are otherwise unavailable. My research has revealed no study on the subject and such data is not included on death certificates in Connecticut.
There has been an alarming worldwide resurgence of tuberculosis in recent years. F. Ryan, How the Battle Against Tuberculosis Was Won and Lost (1993) pp. 389-90. Experts estimate that 10 million Americans are infected with the disease and that homelessness and social deprivation have contributed substantially to its spread. Id., p. 397.
Colburn testified that being homeless and unsheltered means “being dirty [and] not being able to wash.” The only way she could clean herself was to take sponge baths in hospital restrooms. She had no place to shower or bathe thoroughly.
Boyd testified to the ailments of the homeless she had commonly observed. She stated that “the highest percentage of medical problems is *657diseases of the skin . . . .People have a lot of injuries to their feet, blisters and stuff from walking, not being able to stay in one place. . . . The next was the mental disorders, which would include chronic psychosis, alcoholism [and] cocaine abuse. Following that would be diseases of the respiratory system, which would be asthma, bronchitis [and] pneumonia. We see people who constantly are sick with colds and fevers . . . just [from] being outside all the time. . . . And next would be diseases of the muscles and connective tissues, which means that some people have not been treated for the injuries and later on the effects of those injuries turn into something more serious.”
Cynthia DeLouise, the executive director of Columbus House, an emergency shelter in New Haven, testified about her deep concern for the physical well-being of homeless people who are denied shelter. She stated that “it’s difficult enough to be homeless and be discriminated against because of your homelessness, but I think, and my fear is, that many individuals will, could die on the streets, will be hurt on the streets . . . .”
Brother Denys Cormier, the executive director of a soup kitchen in downtown New Haven, testified at trial in the Hilton case that some of the homeless often sleep at soup kitchens during the day so they will not fall asleep outside at night, because they are terrified at what will happen to them in the darkness in our streets, in our alleys, or in our parks.
In Fasulo, this court made it clear that “[t]he due process clause of the Connecticut constitution shares but is not limited by the content of its federal counterpart.” Fasulo v. Arafeh, supra, 173 Conn. 475.
“In order to construe the contours of our state constitution and reach reasoned and principled results, the following tools of analysis should be considered to the extent applicable: (1) the textual approach, see, e.g., Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981) (‘Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.’); (2) holdings and dicta of this court, and the Appellate Court; see, e.g., Doe v. Maher, 40 Conn. Sup. 394, 448-49, 515 A.2d 134 (1986) (trial court used strict scrutiny to analyze sex discrimination claim based on the equal protection clause of the state constitution, relying, in part, on dicta from the Connecticut Supreme Court regarding what standard would be used once Connecticut’s equal rights amendment was adopted); (3) federal precedent, see, e.g., State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990) (‘The adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.’); (4) sister state decisions or sibling approach; see, e.g., State v. Gethers, 197 Conn. 369, 386-87, 497 A.2d 408 (1985); Cologne v. West-farms Associates, [192 Conn. 48, 58-59, 469 A.2d 1201 (1984)]; (5) the historical approach, including the historical constitutional setting and the debates of the framers; see, e.g., State v. Lamme, supra, 178-80; Cologne v. West-farms Associates, supra, 60-62; Palka v. Walker, 124 Conn. 121, 126, 198 A. 265 (1938); and (6) economic!sociological considerations. See State v. Bar*661ton, [219 Conn. 529, 546, 594 A.2d 917 (1991)]; State v. Dukes, [209 Conn. 98, 115, 547 A.2d 10 (1988)]; see generally State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985); M. Margulies, ‘Connecticut’s Free Speech Clauses: A Framework and an Agenda,’ 65 Conn. B.J. 437 (1991) (an analytical framework for state constitutional analysis in the context of the free speech clauses); E. Peters, ‘State Constitutional Law: Federalism in the Common Law Tradition,’ 84 Mich. L. Rev. 583 (1986) (book review).” State v. Geis-ler, supra, 222 Conn. 684-86.
“The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party— the state or the defendant—can respond; and they encourage a principled development of our state constitutional jurisprudence. Although in Geisler we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. See, e.g., State v. Joyce, 229 Conn. 10, 16 n.7, 639 A.2d 1007 (1994). Finally, not every Geisler factor is relevant in all cases. See, e.g., State v. Miller, 227 Conn. 363, 381, 630 A.2d 1315 (1993).” State v. Morales, supra, 232 Conn. 716 n.10.
Scholars have consistently recognized that, although Connecticut did not have a document formally designated as a state constitution prior to 1818, we did have fundamental law that guaranteed the rights of our citizens. C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 89-90 (1982); H. Cohn, “Connecticut Constitutional History: 1636-1776,” 64 Conn. B.J. 330 (1990); W. Horton, “Connecticut Constitutional History: 1776-1988,” 64 Conn. B.J. 355 (1990).
Unfortunately, the proceedings of the constitutional convention of 1818 were not recorded. See J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1901).
Identical language appears in the preamble to the Constitution of 1818.
Identical language appears in article first, § 12, of the constitution of 1818.
The General Court was the governing body of the colony. See W. Horton, The Connecticut State Constitution, supra, p. 3.
Ludlow was an attorney who, as a legal scholar, had distinguished himself at Oxford University. L. Lewis, supra, 27 Conn. B.J. 421.
The Book of the General Laws for the People Within the Jurisdiction of Connecticut (1672) p. 57, provides in pertinent part: “It is Ordered by the Authority of this Court; That every Town within this Colony, shall maintaine their own poor . . . .”
Chief Justice Swift became a “victim of toleration” and was not reappointed to the Supreme Court after the constitutional convention. W. Horton, “Connecticut Constitutional History: 1776-1988,” 64 Conn. B.J. 355, 359 (1990). He then devoted “his energy to reorganizing the General Statutes, which had not been revised since 1808. . . .” W. Horton, The Connecticut State Constitution, supra, p. 20. The result was the General Statutes (1821 Rev.).
General Statutes (1821 Rev.) title 73, chapter 1, provides in pertinent part: “Sect. 2. All poor and impotent persons, who have not estate sufficient for their support, and have no relations of sufficient ability, who are obliged by law to support them, shall be provided for, and supported, at the expense of the town where they belong. And it shall be the duty of every town to maintain and support all the poor inhabitants belonging to the town, whether residing in it, or in any other town in the state. . . .” See also Doe v. Maher, supra, 40 Conn. Sup. 412-13.
The Public Records of the Colony of Connecticut from 1665 to 1678 (J. Trumbull ed., 1852) p. 190 (“It is ordered by this Court that our Lawes shall be printed as soone as may be conveniently .... It is aliso ordered that every famely in the severall plantations in this Colony shall purchase one of our Law bookes, to keep for their use; and the constables of the several plantations are to see that this order is duely attended . . . .”).
The majority attributes no significance to our 350 year statutory history of providing subsistence for the poor. It apparently takes this position for two reasons. First, although the majority acknowledges the statutory obligation of the government to provide for the poor, it states that no constitutional right exists because the statutes did not explicitly set forth a cause of action “that was judicially enforceable against the government by an indigent individual.” The simple response to this argument, however, is that the statutes implicitly allowed the beneficiaries of the statute to enforce the rights they had been granted thereunder. Second, the majority concludes that “only ‘statutory common law rights’ are so enshrined” in the state constitution, and defines such a right as one that was already a part of the common law when it was codified in statutory form. See footnote 30 of the majority opinion. The case cited by the majority for this curious concept, Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 331-33, and the precedents upon which Kelley is predicated, do not support it. Indeed, the phrase “statutory common law right” does not appear anywhere in the text of that opinion nor, as nearly as I can tell, in any of this court’s other published opinions. Nevertheless, the right of the poor to minimal subsistence fits this mold. As I point out in the text of this dissent, the early colonists distrusted the English notion of judge made common law, choosing instead to codify all law in statutory form. The first statute recognizing the right of the poor to minimal subsistence was enacted at the very beginning of this process. The “common law” of Connecticut, as we know it, began to evolve much later. In a sense, therefore, statutes regarding the rights of the poor predated even our common law. Certainly, a statutory right that existed for more than 350 years and that evolved within a legal system that initially had rejected English common law is an implicit constitutional right that may be enforced pursuant to article first, § 10, of the state constitution. In addition, according to the traditions and customs of the people of this state, the right of the poor to the subsistence necessary for humane survival is a basic component of this society and the most fundamental of all constitutional rights.
The majority also characterizes the poor laws prior to 1818 as “broad, ambiguous, highly discretionary and providing] little guidance as to the intent of the framers.” Although the early statutes do not detail the parameters of the right to subsistence, common sense makes clear that the extent of the subsistence was at least that which was necessary for humane survival, and that is the only issue before this court.
See E. Kirby, Kirby’s Reports (1785-88); 4 American Legal Records, Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942) p. vii (forward written by C. Clark).
In addition to the published opinions in Kirby, Judge William Samuel Johnson’s Superior Court diary illuminates Connecticut’s early jurisprudence and serves as a historical record of early decisions of Connecticut courts. This diary, which spans the years 1772 and 1773, was edited and published in 1942 by the American Historical Association. See generally 4 American Legal Records, Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942).
Judge Root was the reporter of the two volumes of reports covering decisions rendered by the Superior Court and the Supreme Court of Errors from 1789 to 1798. In the second of these volumes, Judge Root explained that “[t]he author’s inducement to continue these Reports, is to contribute what is in his power, to render stable, clear and consistent, the system of jurisprudence and the laws of the state, by publishing the adjudged cases in the highest courts of law in the state, for the term of years specified in said Reports; although accompanied with much care and trouble without any pecuniary advantage to himself.” J. Root, 2 Root’s Reports, preface (1793-98).
Judge Root was one of the “two most reactionary members of the [constitutional] convention [of 1818].” W. Horton, The Connecticut State Constitution, supra, p. 12. Nevertheless, he was not willing to embrace the ultraconservative common law of England. He acknowledged that “[w]e learn from history, the constitutions of government and the laws of foreign countries, the adjudications and rules of practice adopted in their courts of justice; but this will not give us the knowledge of our own, and although we may seem to have borrowed from them, yet ours is essentially different from all; in that, it is highly improved and ameliorated in its principles and regulations, and simplified in its forms, is adapted to the state of our country, and to the genius of the people, and calculated in an eminent manner to improve the mind by the diffusion of knowledge, and to give effectual security and protection to the persons, rights, liberties and properties of the citizens; and is clothed with an energy, derived from a source, and rendered efficacious by a power, unknown in foreign governments, (viz.) the attachment of the citizens who rejoice in being ruled and governed by its laws, for the blessings it confers. Let us, Americans then, duly appreciate our own government, laws and manners, and be what we profess, an independent nation; and not plume ourselves upon being humble imitators of foreigners, at home and in our own country; but let our manners in all respects be characteristic of the spirit and principles of our independence.” 1 J. Root, supra, p. xiii.
The “small volume of reports” was a reference to Kirby’s Reports, which, according to its title page, contained “reports of cases adjudged in the Superior Court of the state of Connecticut from the year 1785, to May, *6721788, with some determinations in the Supreme Court of Errors.” The treatise to which Judge Root referred was Chief Justice Swift’s “A System of the Laws of the State of Connecticut,” the first American treatise on the law, which was published in 1795.
See footnote 30 of this dissent.
This section of Judge Root’s commentary on the law is entitled, “On Supporting the Poor.” The text of this section provides in pertinent part:
*673“The poor and indigent in all countries, call not only for private charity, but for support and assistance from the government, and to give scope to the exercise of benevolence, the most noble and godlike virtue; for God taketh the poor under his care, he heareth them when they cry; and the highest character given of any ruler on earth is, that he judgeth the people in righteousness, and the poor with judgment; that he delivereth the needy when they cry, and the poor that hath no helper; that he dealeth bread to the hungry, and delivereth him that is ready to perish.
“It is the duty of every government to protect and to provide for the poor; the laws of the state therefore humanely enact and ordain, ‘that every person who shall become poor and impotent, unable to provide for him or herself, and hath no estate, shall be taken care of and provided for, by such of his or her relations as stand in the line and degree of father or mother, grandfather or grandmother, children or grandchildren, if they are of sufficient ability to do it.’
“It further ordains that every town shall take care of, provide for and maintain, its own poor. And the law points out particularly, how a right of settlement is acquired in a town, and the poor of each town are to be provided for by the selectmen, at the charge of the town; except where some person is by law bound to support them. Citizens of other states falling into want in any town in this state, may be sent by a constable to where they belong, or be provided for by the selectmen, at the expense of the town in the first instance, to be reimbursed by the person or by the relations, within certain degrees of kindred, if of ability, otherways, by the town, except where warning to depart was given, to the person within three months, in that case the charge is paid by the state. Foreigners who have no settlement in any town in the United States, falling into want, are provided for by the selectmen of the town, and the expense is to be allowed by the governor and council, and paid out of the treasury of the state.” 1 J. Root, supra, pp. xxviii-xxix.
See text accompanying footnote 22 of this dissent.
See discussion to follow.
Andros claimed authority to govern New England, New York and New Jersey under a patent from Charles II of England. He remained in power for eighteen months until he was overthrown following the Glorious Revolution of 1689 in England. W. Horton, The Connecticut State Constitution, supra, p. 4.
The office of justice of the peace was introduced in Connecticut between 1687 and 1689, when Andros reigned over the colony; 4 American Legal Records, Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942) p. xiv; and was patterned after its English counter*676part. See H. MacDonald, “An Obituary Note on the Connecticut Justice of the Peace,” 35 Conn. B.J. 411, 417 (1961). Indeed, the only important distinctions between the English and American justices of the peace were that (1) the American justices had more extended duties and authority as a matter of necessity because of the distances between communities and the lack of transportation, and (2) while the colonial justices were paid, the English justices were not. Id., p. 417. In addition, over time the English system was distinguished by its flexible adaptation to changed conditions. In contrast, the American system rigidly adhered to the structure adopted in the colonial period. Id., p. 418.
In 1698, as part of governmental reorganization, the Connecticut General Assembly declared that these officials were to be appointed to each county and “shall have full power throughout the respective counties, to act according to commission given by this Court and the lawes of this Colonie.” 4 American Legal Records, supra, p. xiv. General Statutes (1808 Rev.) title XCV, chapter 1, § 4, provided that each county of the state was to have a commissioned justice of the peace, who was given broad judicial powers, including the power “to exercise and execute the office, duty, and trust to which they are or shall be appointed, commissioned, and sworn ... to every purpose and intent according to the nature, end, and design of their respective offices, according to the laws of this State, for the common good and peace of the state, and the doing equal and speedy justice to thé people therein.” ''
English records from the eighteenth century reveal that a poor person in need of assistance had two sources of help available. First, the poor person was required to seek assistance from the local overseer. An overseer was empowered with duties equivalent to those of a colonial selectman, including the duty of providing for the poor. Second, if the overseer refused to help, the poor person could seek relief from a justice of the peace. See generally 3 R. Burn, The Justice of the Peace and Parish Officer (16th Ed. 1788) pp. 662-70. Indeed, it was not uncommon for a justice of the peace to rule on such requests. “As a matter of practice, it is certain, that nothing is more common at the sessions [of the justice of the peace] than applications for the maintenance of poor persons .... In some places this makes up almost half of the business of the sessions, even to a degree of ridicule among the unthinking part of mankind; as if magistrates could be better employed than in relieving the miseries of the distressed.” Id., pp. 665-67 (recounting the case of King v. North Shields); see also id., pp. 662-63 (recounting the case of King v. Woodflerton, which held that justices possessed power to order parish officers to provide relief for poor residents).
Petition of Mary Bate of West Haddam, 6 C. Hoadly, The Public Records of the Colony of Connecticut from May, 1717, to October, 1725 (1872) p. 10.
Petition of John Pratt of Seybrook, 5 C. Hoadly, The Public Records of the Colony of Connecticut from October, 1706, to October, 1716 (1870) p. 576.
Indeed, the troublesome issue of separation of powers was one of the direct reasons for the constitutional convention of 1818 and the ensuing adoption of our first formal constitution. The issue came to a head after the murder trial of Peter Lung early in the nineteenth century. Chief Justice Swift had presided over the case, which resulted in a verdict of guilty. Lung, however, appealed his conviction to the state legislature, claiming that there had been irregularities in the grand jury proceedings. The legislature reversed Lung’s conviption. See Lung’s Case, 1 Conn. 428 (1815).
The legislature’s meddling infuriated Chief Justice Swift, who urged adoption of a state constitution which would provide for separation of powers between the judicial and legislative branches of government. Chief Justice Swift made his arguments in an article entitled “A Vindication of the Calling of the Special Superior Court, at Middletown, on the 4th Tuesday of August, 1815, For the Trial of Peter Lung, Charged with the Crime of Murder. With Observations on the Constitutional Power of the Legislature to Interfere with the Judiciary in the Administration of Justice.” J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1901) p. 43 n.2. Chief Justice Swift wrote that “ ‘[i]t is true ... 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. . . .’ ” Id., p. 43.
The majority, in refusing to recognize the existence of this right under our state constitution, relies heavily on the fact that no other state has found an implicit right to subsistence in its state constitution. Because Connecticut is unique among its sister states, however, their treatment of this issue is not dispositive. As Professor Collier pointed out, other colonies and states relied on private charities to care for the poor. Only Connecticut did so as a matter of governmental obligation. See, e.g., 1 Z. Swift, supra, p. 121 (regarding statutory requirement that government provide subsistence to poor, “[t]his liberal and general provision of the law, has in a great measure superseded the necessity of the exercise of the God-like virtue of charity”). For a discussion of the decisions of courts in other jurisdictions, see part III C of this dissent.
Natural law is a theory of jurisprudence that contends that “law has its origin and justification in absolute standards of right and wrong, so that while its specific implementation may vary from time to time, and place to place, there is an underlying continuity arising from the conformity of the specific statutes and decisions to the absolute standard. It is a corollary of this theory that those specific laws which are not in conformity with the underlying general principles are not, strictly speaking, laws at all.” W. Aspell, “Natural Law in the Connecticut Tradition,” 31 Conn. B.J. 105 (1957).
“And well knowing 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.” Fundamental Orders of 1638, reprinted in Conn. Register and Manual (1956) p. 24.
“We have endeavored not only to ground our capital laws upon the Word of God, but also all other laws upon the justice and equity held forth in that Word, which is a most perfect rule.” Laws of the Colony of Connecticut (1672), preface.
Professor Collier based his conclusion on the earliest recorded colonial practices, codes and common law of the state of Connecticut.
See footnote 42 of this dissent.
Montana has subsequently amended its state constitution in order to eliminate this constitutional requirement.
No court appears to have interpreted the “elimination of poverty” language included in the new constitution’s preamble.
In Franklin v. Dept. of Human Services, supra, 225 N.J. Super. 515, a divided three judge panel of the Appellate Division held that the introductory clauses of the New Jersey state constitution did not impose on the state an affirmative obligation to provide the poor with certain necessities, including shelter. In L.T. v. Dept. of Human Services, supra, 264 N.J. Super. 342, the Appellate Division concluded that the same introductory clauses did not protect a right to government funded housing.
In Franklin v. Dept. of Human Services, 111 N.J. 1, 17, 543 A.2d 1 (1988), the New Jersey Supreme Court affirmed the judgment of the Appellate Division, but explicitly stated that “we do not reach the constitutional issues addressed by the court below . . . .” In L.T. v. Dept. of Human Services, 134 N.J. 304, 328, 633 A.2d 964 (1993), the New Jersey Supreme Court reversed the judgment of the Appellate Division, but explicitly stated that “[t]he question before us is not whether the homeless have a constitutional right to shelter.”
The New Jersey Supreme Court cited a law review article; see C. Paséale, “Homeless People Have Rights Too,” 156 N.J. Lawyer 18 (1993) (analyzing whether New Jersey has constitutional right to shelter); and went on to state: “We are aware of the great demands that are made on an agency of government like [the department of human services (department)]. Undoubtedly, [the department] wishes that it had more funds in order to supervise the far-flung operations of the [municipal welfare departments] that shelter the homeless, as well as more funds to feed the hungry, care for the children and elderly, and heal the sick, because all needy people are deserving of the agency’s attention. However, although there are no rankings in the ‘catalog of human suffering,’ Rodgers v. Gibson, 218 N.J. Super. 452, 457, 528 A.2d 34 (App. Div. 1987), surely homelessness represents something uniquely devastating to the human spirit. As a society, we may be offended by the presence of homeless people among us; they are a silent rebuke to our way of life. ‘Once pitied, [the homeless are] now censured.’ Jill Smolowe, “Giving the Cold Shoulder,” Time, Dec. 6,1993, at 28, 30. But the consequences of their status cannot be denied. ‘Reports abound documenting the gradual but inexorable disintegration of body and mind wrought by homelessness.’ JohnC. Connell, “A Right to Emergency *690Shelter for the Homeless Under the New Jersey Constitution,” 18 Rutgers L.J. 765, 786 (1987) . . . L.T. v. Dept. of Human Services, supra, 134 N.J. 324.
The court, citing the same legal commentator’s assessment of conditions facing the homeless, then addressed the actions of the New Jersey legislature. “The human costs of homeless living are unconscionable. Food is often acquired only from charity or from public trash. Public restrooms offer rare opportunities for practicing personal hygiene and cleanliness. Days are expended in aimless attempts to seek out minimal sustenance through jobs, welfare, and various means of self-help. Moments of rest are stolen in the most public places. Criminal and sexual victimization is common; companionship is rare. The indignities are insufferable, at least in the eyes of those not homeless. . . . We cannot help but believe that our lawmakers do not intend to bring about such results and do not intend that their general appropriations for human services not attend to such needs.” (Internal quotation marks omitted.) Id.
The majority also cites a West Virginia case, Hodge v. Ginsberg, 172 W. Va. 17, 303 S.E.2d 245 (1983). I do not understand the relevance of that case to the issue at hand. That case does not discuss whether the West Virginia state constitution requires that state to provide for the poor. Indeed, *691the only issue in that case was whether administrative regulations, enacted by the state department of welfare under legislative delegation, went beyond the scope of the statutory grant of authority. See id., 22.
Although the majority attempts to cast doubt upon the enforceability of the New York constitutional provision regarding care for the homeless, I note that the New York Court of Appeals recently put this very question to rest. In Jiggets v. Grinker, 75 N.Y.2d 411, 416, 553 N.E.2d 570, 554 N.Y.S.2d 92 (1990), a case the majority does not cite, New York’s highest state court declared that “[t]he provision of assistance to the needy is not a matter of legislative grace but is specifically mandated by the New York State Constitution . . ,
“Unlike the United States Constitution, the constitutions of 22 states include in some manner a specific provision relating to the care of the needy or the protection of the health of the people. These constitutional provisions can be divided into three loosely described categories. The first category includes those that make a statement of principle regarding care of the less fortunate. The Preamble to the Illinois Constitution, for example, states that the Constitution is ordained and established among other reasons to ‘eliminate poverty and inequality; assure legal, social and economic justice; [and] provide opportunity for the fullest development of the individual.’ On a more general level, the Preamble to the Hawaii Constitution reaffirms a belief in government with ‘an understanding and compassionate heart toward all the peoples of the earth.’
“A second category includes those provisions that authorize the state, or a local governmental entity, to provide for the poor or for the health of the citizens. The California Constitution, for example, states that the legislature and the people ‘shall have power to provide for the administra*692tion of the relief of hardship and destitution, whether resulting from unemployment or from other cause. . . .’ Similarly, the Oklahoma Constitution states that the legislature and the people through initiative are authorized ‘to provide by appropriate legislation for the relief and care of needy, aged persons who are unable to provide for themselves, and other needy persons who, on account of immature age, physical infirmity, disability, or other cause, are unable to provide or care for themselves.’
“The final category includes provisions that do not merely authorize the state to provide for the poor, but instead refer to a governmental obligation to care for the needy or protect the health of all citizens. Such provisions are found in twelve state constitutions. The Alabama Constitution states that it ‘shall be the duty of the legislature to require the counties to make adequate provision for maintenance of the poor.’ The Alaska Constitution states simply but clearly that the legislature ‘shall provide for public welfare.’ As a further example, the North Carolina Constitution states: ‘Beneficent provision for the poor, the unfortunate, and the orphan is one of the first duties of a civilized and a Christian state. Therefore the General Assembly shall provide for and define the duties of a board of public welfare.’ ” D. Braveman, Symposium, “After the War: Poverty Law in the 1980s: Children, Poverty and State Constitutions,” 38 Emory L.J. 577, 595-96 (1989).
Article seventh, § 4, of the Kansas constitution provides: “aged and INFIRM PERSONS; FINANCIAL AID; STATE PARTICIPATION. The respective counties of the state shall provide, as may be prescribed by law, for those inhabitants who, by reason of age, infirmity or other misfortune, may have claims upon the aid of society. The state may participate financially in such aid and supervise and control the administration thereof.”
Furthermore, I do not understand why the majority cites and quotes from the constitutions of Alabama, North Carolina or Wyoming in part IIA of the majority opinion. As I have indicated, the Alabama Supreme Court has held that the legislature has an affirmative duty to provide for the poor. See Childree v. Health Care Authority, supra, 548 So. 2d 421. Thus, the majority’s reference to Alabama law is directly contrary to its position. Moreover, I am bewildered by the majority’s reference to the constitutions of Wyoming and North Carolina because, as the majority aptly notes, “whether [the] constitutional provision includes a right to minimal subsistence [is] undecided” in those states. Citing and quoting these uninterpreted constitutional provisions adds nothing to the debate.
For example, in Orrington v. Bangor, supra, 142 Me. 54, the town of Orrington, Maine, sought to recover from the city of Bangor the value of supplies it had furnished to an indigent woman and her children. The pertinent statute provided that the city or town identified as the poor person’s “pauper settlement” was required to pay for his or her support. Id., 55. The city of Bangor satisfied the statutory definition of “pauper settlement,” but argued that the court needed to look beyond the terms of the statute because the indigent woman had been a party to a sham marriage that was designed to alter her town of settlement. Id., 56. The court rejected the argument, concluding that “[t]he obligation of towns and plantations in reference to [paupers’] support originates solely in statutory enactment and has none of the elements of a contract, express or implied. There are no equitable considerations out of which presumptions in favor of either party will arise.” (Internal quotation marks omitted.) Id., 57. The court did not discuss the state constitution or any duty imposed by the constitution on the towns.
Similarly, the New Hampshire cases include language to the effect that any obligation to the poor is purely statutory. The source of this proposition, and its true meaning, can be traced back to two early cases of the New Hampshire Supreme Court. In each case, the plaintiff town had brought a common law action in assumpsit against another governmental body for reimbursement of costs incurred in supporting a pauper. In each case, the court rejected the plaintiff’s claim, holding that the reimbursement statute had supplanted the common law remedy of assumpsit. Plymouth v. Grafton County, 68 N.H. 361, 363, 44 A. 523 (1895) (“There is no statute authorizing in terms or by implication the enforcement of such liability by a suit in assumpsit, or any common-law action. Hence, the defendants are not liable in an action of assumpsit.”); Meredith v. Canterbury, 3 N.H. 80, 81 (1824) (“[a]s there is no obligation, which, independent of the statute, *695binds one town more than another to maintain a particular pauper, it has always been held, that, in order to charge a town, the statute must be strictly pursued”).
Elliott involved a challenge by two unmarried, minor sisters, both of whom were ppegnant, to a Nebraska regulation that established standards of eligibility for benefits under the federal Aid to Families with Dependent Children program. The sisters argued that each of them and her unborn child should be regarded as separate two person “units” for purposes of receiving welfare benefits. The regulation, however, required that the sisters and their unborn children, together with the sisters’ mother and brother, should be regarded as a single six person unit. The sisters contended that the regulation violated their equal protection and due process rights. Elliott v. Ehrlich, supra, 203 Neb. 792-93. The Nebraska Supreme Court, in determining what degree of scrutiny to apply to the regulation, stated that “[w]elfare benefits are not a fundamental right and neither the state nor the federal government is under any sort of constitutional obligation to guarantee minimum levels of support. Lavine v. Milne, 424 U.S. 577, 96 S. Ct. 1010, 47 L. Ed. 2d 249 [1976].” Id., 796.
It is clear, for two reasons, that this statement refers only to a right to welfare benefits under the federal constitution, and not under the state constitution. First, the court made this statement in the context of deter*696mining what degree of scrutiny to apply under the federal due process and equal protection clauses. Indeed, the court’s entire discussion in Elliott focused on federal precedent. Because regulations infringing fundamental rights protected by the federal constitution must survive strict scrutiny, the court needed to determine whether the federal constitution provided a fundamental right to receive welfare benefits. Second, the court in Elliott never conducted any independent state constitutional analysis. Although the court did conclude that the regulation “is invalid and unconstitutional under the United States and Nebraska Constitutions”; id., 798; it appears that the court did so solely on the basis that the due process and equal protection clauses under both constitutions are interpreted as having identical meaning. Kirshen v. Kirshen, 227 Neb. 479, 481, 418 N.W.2d 558 (1988) (due process); see Meis v. Grammer, 226 Neb. 360, 368, 411 N.W.2d 355 (1987) (equal protection).
In addition, the majority cites the Illinois case of Beck v. Buena Park Hotel Corp., 30 Ill. 2d 343, 196 N.E.2d 686 (1964). This case, although mentioning the Illinois state constitution, referred to the constitution adopted in 1870. As pointed out in the text of this dissent, Illinois has since adopted a new constitution that includes a specific reference to the elimination of poverty. See part III C 1 of this dissent.
Most fundamental rights, such as the right to privacy, the right to interstate travel and the right to marry, simply proscribe governmental interference. For several important rights, however, the constitution requires affirmative action on the part of the government. For example, both the federal and state constitutions require the government, either explicitly or implicitly, to provide indigent criminal defendants with counsel during court proceedings; see, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); to provide indigent criminal defendants with counsel in criminal appeals; see, e.g., Swenson v. Bosler, 386 U.S. 258, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967); and to provide procedural due process. See generally Fasulo v. Arafeh, supra, 173 Conn. 473. in addition, the government must provide indigent defendants with counsel in paternity actions. Lavertue v. Niman, 196 Conn. 403, 493 A.2d 213 (1985). In Doe v. Maher, supra, 40 Conn. Sup. 394, the court held that under our state constitution, the state must pay for the medically necessary termination of pregnancy. Furthermore, the explicit language of the preamble of the state constitution, which provides for the preservation of our historic “rights and privileges,” is not restricted merely to the preservation of negative rights and privileges. Rather, as the Chief Justice observes in part IB of her concurring opinion, unenumerated state constitutional rights may also include affi-rmative rights. I fully agree with the Chief Justice’s analysis of this point.
Because there is no right more fundamental than the very right to humane survival, the state government must be charged with the affirmative obligation to provide what is necessary for the minimal subsistence of its citizens. As scholar Laurence Tribe noted with respect to the United States constitution, “|t]he day may indeed come when a general doctrine under the fifth and fourteenth amendments recognizes for each individual a constitutional right to a decent level of affirmative governmental protection in meeting the basic human needs of physical survival and security, health and housing, work and schooling. The time may come when constitutional law will answer the scholar’s question, Why education and not golf? with a reply that is likely to make human sense—Because education is more important—and when this answer, however odd it will seem to some lawyers, will seem inescapable to those who take their lessons from life itself.” (Internal quotation marks omitted.) L. Tribe, American Constitutional Law (2d Ed. 1988) p. 779.
Professor Charles L. Black, Jr., reminds us of the elemental importance of the right we are addressing. In arguing for a right to subsistence under the federal constitution, Professor Black recalled Justice Cardozo’s explanation in Palko v. Connecticut, 302 U.S. 319, 326, 58 S. Ct. 149, 82 L. Ed. 288 (1937), as to why the first amendment’s guarantee of freedom of speech applied not only against the federal government, but also against the states. “It was because, in his famous words, ‘neither liberty nor justice would exist’ if this right were lacking. ‘Of that freedom,’ he goes on, ‘one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. ’ ” C. Black, “Further Reflections on the Constitutional Justice of Livelihood,” 86 Golum. L. Rev. 1103, 1110 (1986). Analogizing the importance of the right to subsistence to the right to free speech, Black added, “I would like to look Cardozo straight in his gentle eyes and ask him to consider whether the rights to freedom from gnawing hunger and from preventable sickness may not form ‘the matrix, the indispensable condition, of nearly every other form’ of freedom.” Id.