Applying Federal Constitutional Theory to the Interpretation of State Constitutions: The Ban on Special Laws in Maryland

Abstract

The last forty years have witnessed the creation and explosive evolution of theories of constitutional interpretation that purport to explain how federal constitutional courts should or must interpret constitutional texts. At almost precisely the same time, a much smaller movement has developed, calling for a renewed focus on state constitutions as an independent source of constitutional protections. Interestingly, however, academia has rarely attempted to apply these theories of constitutional interpretation to state constitutions. This Article fills that void and applies constitutional interpretation theory to a misunderstood provision of the Maryland Constitution concerning the prohibition on special laws — laws that relate to a particular person or class, as opposed to general laws, which apply to all. In so doing, this Article examines the usefulness of existing theories of constitutional interpretation, designed principally for interpreting the federal constitution, for the new purpose of interpreting state constitutions.

This Article examines six specific theories of constitutional interpretation: (1) textualism; (2) originalism; (3) moral reasoning; (4) structural reasoning; (5) comparative constitutional law; and (6) common law reasoning. This Article argues that no preordained system of interpretation can answer every possible constitutional question. Constitutional theory can inform, but never replace, human judgment. Rather, judges should make use of all possible tools of interpretation, including their own personal judgment constrained by a reasonable reading of the text as informed by the history of the provision’s adoption, subsequent judicial and scholarly interpretations, core moral values, political philosophy, and state and national traditions, to find the best possible interpretation.

Keywords: Constitutional Interpretation, Special Laws, Maryland Constitution, State Constitution, Textualism, Originalism, Moral Reasoning, Structural Reasoning, Comparative Constitutional Law