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Editorial Advisory Board: Let’s not forget the Maryland Constitution

The final days of the Supreme Court’s recently concluded term brought several significant constitutional decisions, including Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade, and Kennedy v. Bremerton School District which “abandoned” Lemon v. Kurtzman.

Notwithstanding the majority’s disclaimer in Dobbs that the decision does not impact constitutional rights other than the right to an abortion, Justice Clarence Thomas’s concurring opinion portends further rights being overturned in the coming years.  Although Maryland courts are bound by the supremacy clause to apply Supreme Court decisions when they restrict state action, Maryland courts may, and should, interpret the Maryland Constitution’s Declaration of Rights to grant greater rights than the U.S. Constitution in appropriate circumstances.

This editorial’s argument is not a new one. Supreme Court Justice William J. Brennan’s 1977 Harvard Law Review article “State Constitutions and the Protection of Individual Rights” advocated that state courts should grant relief under their own constitutions. More recently, Sixth Circuit  Court Judge Jeffrey S. Sutton in his 2018 book “51 Imperfect Solutions: States and the Making of American Constitutional Law” writes that both advocates and courts have underappreciated state law with respect to the protection of individual rights.

The Maryland Declaration of Rights has been part of Maryland constitutional law since the adoption of the state’s first constitution in 1776. The declaration has been incorporated into each of Maryland’s four constitutions and amended from time to time, including Article 48 –“Equality of rights under the law shall not be abridged or denied because of sex” – which was ratified by the people of Maryland in 1972.

For many years, the Court of Appeals of Maryland routinely interpreted provisions of the Declaration of Rights as being in pari materia with analogous provisions of the U.S. Constitution even if the provisions were not identical.  Significantly last year, the Court of Appeals held in Leidig v. State that Article 21 of the Declaration of Rights was more protective of individual rights than the Sixth Amendment’s confrontation clause.

One overarching issue with respect to the Supreme Court’s evolving constitutional jurisprudence is the interpretation of the due process clause. Article 24 of the Maryland Declaration of Rights, which the Court of Appeals has held is Maryland’s analogue to the due process clause, provides that: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.”

Max Crema and Lawrence B. Solum analyze the phrases “due process of law, “due course of law,” and “the law of the land” in their April 2022 Virginia Law Review article. They argue that “due process of law” was a very narrow concept at the time the U.S. Constitution was drafted; the “law of the land” was a broader concept.

Maryland lawyers and Maryland judges should not forget that Maryland has its own constitution.  If the Supreme Court  overturns or abandons other prior decisions finding federal constitutional rights, the Maryland Declaration of Rights can be a source for protecting the rights of the people of Maryland.

 Editorial Advisory Board Member Arthur F. Fergenson did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.