Miles to Go: A Response to Dr. Nicholas Cole’s Speech at the Third Annual Robert F. Williams Lecture on State Constitutional Law

Abstract

The article is a short response to Dr. Nicholas Cole’s speech, entitled “Writing America’s Constitutions: Understanding the Drafting and Re-Drafting of America’s Foundational Texts,” which was delivered as the Third Annual Robert F. Williams State Constitutional Law Lecture at Rutgers Law School—Camden in 2023. Professor Cole’s speech, which was subsequently published in the Rutgers University Law Review, describes his ongoing project to digitize and make available the debates and proceedings of hundreds of state constitutional conventions throughout the United States. My response, while generally enthusiastic about Dr. Cole’s project, sounds a few notes of caution. The article points to defects in state constitutional convention records generally and describes the shortcomings of the records of the Maryland Constitutional Convention of 1867 (which produced my State’s current constitution); points out that many of the ideas discussed and adopted at state constitutional conventions have origins outside the convention and are, thus, invisible to Dr. Cole’s computer system; and points out that Dr. Cole’s computer system will skew state constitutional interpretation toward Originalist-style interpretations. As part of this discussion, I promote my theory of pluralistic constitutional interpretation, in which I use all available interpretive techniques, including originalism, textualism, structuralism, moral interpretive theory, critical race theory, comparative constitutionalism, and common law constitutionalism together to yield the best possible constitutional interpretations.

Keywords: State Constitutional Law, Maryland Constitutional Law