While teaching a seminar in federal constitutional interpretation theory at the University of Maryland Carey School of Law with my friend and teaching partner, Richard Boldt, I had an epiphany: theories of interpretation developed for the federal Constitution might be repurposed for use in the interpretation of state constitutional provisions. I hoped that this would help in both directions, teaching me more about both the state constitutional provisions and the theories of constitutional interpretation.
In this way, I have sought to deepen our collective understanding of Maryland’s constitution by applying different interpretative techniques, including textualism, originalism, structuralism, comparative constitutional interpretation, common law constitutionalism, and critical race theory. So far, I have assessed Maryland’s prohibition on the enactment of special laws, its protection of an injured person’s right to a remedy, its prohibition against ex post facto laws, and the provision that sets forth Maryland’s state constitutional standards for state legislative redistricting. What has become clear to me is that there is no single best interpretive method. Instead, I have gained a deeper understanding of Maryland’s constitution by applying a wide array of interpretive tools.
The techniques of textualism have allowed me to work through the intricacies of the language of our constitutional provisions, while the tools of originalism have helped me understand the history of a provision to try to determine what the people who adopted (and absent that, the people who wrote) that provision thought they were doing. I have used the techniques of structuralism to search for interpretive clues in the forms and structures of government that the constitutions create.
Comparative constitutional interpretation has given me a lens to view what other states have found when they have interpreted similar, analogous, and loaned or borrowed provisions of their state constitutions, while the techniques of common law constitutionalism have allowed me to trace what our courts have done in prior cases and how those prior interpretations can and should influence our modern interpretations. Recently, I added to my arsenal the insights of critical race theory — considering how provisions of our state and federal constitutions were written to create, reinforce, and perpetuate systems of racial oppression.
The most important thing I’ve learned is that in isolation, none of these theories of interpretation is sufficient in every situation. Some interpretive theories are too rigid. Others are too flexible. Some have little to say about one provision but a lot to say about another. Often, the interpretive theories point in different directions.
For example, when I examined Article 19 of the Maryland Declaration of Rights, which guarantees a right to a remedy for an injury, I found that historical research yielded no clear answer about the provision’s original scope and meaning. The text draws from the language of the Magna Carta, but its meaning has evolved, and there is limited information about how it was understood at the time the Maryland Constitution was adopted in 1776 or readopted in 1851, 1864, or 1867.
By contrast, I found that a structuralist analysis helpfully directs our attention to the separation of powers principles and counsels the value of adopting a legal standard that respects both the legislative and judicial branches of government. Meanwhile, a comparative constitutional analysis provides dozens of models of other states interpreting similar provisions from which we can pick.
My experience interpreting provisions like Maryland’s Article 19 leads me to reject the idea that a constitutional interpreter can or should pick a single theory and stick with it. Rather, I think that a constitutional interpreter should use all available interpretive tools, constrained by the traditions and norms of the legal profession, to come to the best possible interpretation of a given provision.
In a landmark article, “An Originalism for Nonoriginalists,” Professor Randy E. Barnett wrote that “it takes a theory to beat a theory and, after a decade of trying, the opponents of originalism have never congealed around an appealing and practical alternative.” To me, this statement is nonsensical.
Imagine a carpenter saying, “It takes a tool to beat a tool and, after a decade of trying, the opponents of hammers have never found a better alternative,” and thereby concluding that the hammer wins and the screwdriver, hacksaw, and pliers are, therefore, not tools worthy of use.
Interpretive theories are not in competition with one another. They are not to be used to the exclusion of the other theories. Rather, they are tools, each with a different function, that are to be used together. Each has a valuable function. Each can improve our understanding.
Using a range of interpretative tools enables judges to “develop the best possible interpretation of a constitutional provision that is constrained by a reasonable reading of the constitutional text and informed by the history of that provision’s adoption, subsequent judicial and scholarly interpretation in this and comparable jurisdictions, core moral values, political philosophy, and state as well as American traditions.” Put simply, judges should use all interpretive tools that are available and then use their judgment to select the best possible interpretation.
I hope this work will help bench and bar develop better understandings of these provisions and provide a blueprint for future work on Maryland’s state constitution (and maybe other state constitutions as well).
Dan Friedman is a judge of the Appellate Court of Maryland. His most recent article about the Maryland Constitution is “Does Article 17 of the Maryland Declaration of Rights Prevent the Maryland General Assembly From Enacting Retroactive Civil Laws?” in the Maryland Law Review.
The views expressed are the author’s own and not necessarily those of the Brennan Center.