Sunday, December 14, 2008
In the spirit of the recent (and important) theme on the blog of state constitutions (see here and here), my review today highlights a recently posted piece on just that topic: Charles Rees (U. Balt.), Remarkable Evolution: The Early Constitutional History of Maryland, U. Balt. L. Rev. (2007).
Rees traces the history and evolution of the Maryland Constitution from 1632 to 1851 and shows their relationship to the development of the U.S. Constitution. In doing so he reminds us why state constitutions--so often overlooked in our conventional con law courses--are important in understanding the evolution of the federal Constitution. Here's a flavor:
In the colonial era, the 1632 Charter of Maryland provided a kind of constitution and a representative assembly for the Province of Maryland, one of the first in the colonies. An "Act ordeining certain Laws for the Government of this Province," enacted in 1639, was a temporary legislative bill of rights and perhaps "the first American Bill of Rights." An "Act Concerning Religion," also known as the Toleration Act of 1649, recognized a measure of freedom of conscience and was probably the first document protecting the free exercise of religion.
In revolutionary times, an Association of the Freemen of Maryland (1775) helped establish a republican form of government and placed Maryland in a union of American colonies. A Declaration, dated July 6, 1776, proclaimed Maryland an independent state, based on the sovereignty of the people. Maryland's first constitution of the people, also in 1776, had separated powers and a Declaration of Rights.
In the early statehood period, the case of Whittington v. Polk, like Marbury v. Madison in the United States Supreme Court, established judicial review . . . . Amendments to the constitution in 1802, 1810, and afterward extended the franchise beyond those initially entitled to vote . . . . Reform amendments to the constitution (1837-1838) provided direct popular elections of certain state officials and reapportionment of the House of Delegates, the lower house of the Maryland General Assembly. The Constitution of 1851 provided for popular participation in constitutional change by regularly taking "the sense of the people" as to calling a constitutional convention.
As the Maryland Constitution was between 1632 and 1851, many state constitutions today are on the cutting edge, e.g., the Civil Gideon issue on which I've recently posted. But they are generally under-appreciated in law schools. In addition to an interesting history of the Maryland Constitution, Rees's article is a good argument for reexamining the place of state constitutions in our law school curricula.