Does Article 17 of the Maryland Declaration of Rights Prevent the Maryland General Assembly from Enacting Retroactive Civil Laws?

Abstract

Article 17 of the Maryland Declaration of Rights provides “[t]hat retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required.” It is unclear whether this prohibition should apply only to retrospective criminal laws or if it should apply to retrospective criminal and civil laws. In this Article, I begin by looking at the Court of Appeals’ fractured plurality, concurring, and dissenting opinions in Doe v. Department of Public Safety & Correctional Services, which, relying mostly on the common law method of constitutional interpretation, determine that Maryland’s sex offender registration regime violated the prior jurisprudence concerning Article 17. Rather than being satisfied with the use of that one interpretive technique, however, I suggest that using several interpretive techniques — textualism and originalism, critical race theory, moral reasoning, structuralism, and comparative constitutional analysis — even when those interpretive techniques generate different results, provides a richer understanding of Article 17. In the end, I conclude that the Maryland Constitution should be — and already is — interpreted to prohibit retroactive laws irrespective of whether those laws are criminal or civil.

Keywords: Maryland Constitution, State Constitutional Law, Ex Post Facto