Celebrating Constitution(s) Day 2023

On Sept. 17 each year, we observe Constitution Day, honoring the date in 1787 that the delegates to the Constitutional Convention in Philadelphia signed the United States Constitution. Much less attention is paid to the following day, which is the anniversary of the current Constitution of Maryland, ratified by the people of the state on Sept. 18, 1867.

At the time it was adopted, the new U.S. Constitution marked a step forward from the forms of government that had preceded it, establishing a partially representative democracy based on the principle of the rule of law rather than people. The new Constitution marked a departure from the Articles of Confederation that had preceded it, creating the foundation for the eventual emergence of a strong central government.

At the same time, picking up from the intellectual foundations of enlightenment thinkers like John Locke and Montesquieu, one of the key innovations of the U.S. Constitution with respect to the organization of the government was a division of the legislative, executive, and judicial powers of government into separate branches, with each branch serving as an independent check on the others.

The framers of the Constitution believed that separating the powers of government into separate branches was essential to the preservation of liberty by preventing any one individual or group from aggregating too much unchecked power. A few years later, in 1791, the framers took another step to preserve liberty by adopting the first 10 amendments to the Constitution, which much later became known as the Bill of Rights.

Although these steps were new in the establishment of a national government, they were not new to Maryland or several of the other new states and former colonies. Indeed, by the time the delegates met in Philadelphia, Maryland’s first constitution was already more than a decade old.

That 1776 Constitution of Maryland employed the same division of governmental powers into separate branches, each serving as a check on the others, with a provision stating that they “ought to be forever separate and distinct from each other.” And the 1776 Constitution of Maryland came in two parts, the first of which was a Declaration of Rights containing many provisions that were analogous to those later incorporated into the federal Bill of Rights, along with others.

Today, Maryland’s fourth constitution, ratified by the people on Sept. 18, 1867 and amended many times since, still divides the powers of government among legislative, executive, and judicial branches, and it still leads with a Declaration of Rights limiting the powers of government with respect to the people.

For example, the Maryland Declaration of Rights guarantees the “right to petition the Legislature for the redress of grievances”; prohibits laws that would impose retrospective penalties or bills of attainder; guarantees the right of a criminal defendant to counsel, to confront witnesses, to avoid self-incrimination, and “to a speedy trial by an impartial jury” whose determination must be unanimous; guarantees the right to a jury in certain civil proceedings; guarantees due process and the equal protection of the laws; prohibits the imposition of excessive bail, fines, or cruel or unusual punishment; prohibits general warrants; protects religious liberty and prohibits the establishment of religion; and protects freedom of the press and freedom of speech.

Although many of those rights are analogous to rights appearing in the United States Constitution, they are not necessarily identical.

The Constitution of Maryland also provides “[t]hat all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole;” and that all people “ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.”

As Constitution Day approaches this year, Marylanders may take notice of both of the constitutions that recognize and preserve their rights and establish and define the institutions of government.

Matthew J. Fader is the chief justice of the Maryland Supreme Court.