Thursday, December 18, 2008

Rees on The Early Constitutional History of Maryland

Charles A. Rees, University of Baltimore School of Law, has posted a new paper, Remarkable Evolution: The Early Constitutional History of Maryland. It appeared in the University of Baltimore Law Review (2007). Here's the abstract:

Maryland's history shows a remarkable constitutional evolution. At its founding, the province of Maryland was subject to the largely unwritten British constitution and to a kind of constitution, the 1632 Charter of Maryland, which was the British king's grant in the Latin language of land and governance to the Proprietor, Lord Baltimore and his heirs. Maryland's first constitution of the people in 1776 was legislated by the governing body of the state, albeit one elected for the purpose of forming a new government, but the Constitution of 1776 was not ratified by the people. Subsequent revised Maryland constitutions in 1851, 1864, and 1867 were proposed by specially elected constitutional conventions and adopted by vote of the people. Since 1851, the constitutions of Maryland have included a provision calling on the legislature to determine, at periodic general elections, the "sense of the people" about whether a constitutional convention should be called. Since the Constitution of 1776, Maryland's constitutions have been frequently revised and amended. Maryland's constitutions, beginning with that of 1776, have been in the English language. Thus, Maryland's "constitution" was originally a grant, written in Latin (and against the backdrop of a largely unwritten British constitution), from the British king to a noble family. Now the Constitution is a home-grown, regularly-reconsidered compact of the people written in their own language.

This article tells the story of the evolution of Maryland's Constitution from 1632 to 1851. That story includes not only the remarkable evolution described above, but also a number of developments important to American constitutional history. This history of the Maryland Constitution spans the colonial era, revolutionary times, and early statehood (before the Civil War).

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 Goverment 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, i.e., that courts are the primary interpreters and enforcers of the constitution. Amendments to the constitution in 1802, 1810, and afterward extended the franchise beyond those initially entitled to vote, i.e., free, white, male, 21 years of age, and property owners. 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.

Some developments after 1851 are briefly described to show how matters have continued to evolve.

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