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                                6 of 6 DOCUMENTS
 
            Copyright (c) 1997 Temple University of the Commonwealth
                            System of Higher Education
                                Temple Law Review
 
                                   Fall, 1997
 
                               70 Temple L. Rev. 945
 
LENGTH: 12854 words
 
EMERGING ISSUES IN STATE CONSTITUTIONAL LAW: ARTICLE: THE HISTORY, DEVELOPMENT,
 AND INTERPRETATION OF THE MARYLAND DECLARATION OF RIGHTS
 
This article has been republished under a new citation.  Please see 71 Temple L.
 Rev. 637 for the republished article.
 
by Dan Friedman *
 
 

   * Associated with the law firm of Miles & Stockbridge, P.C., in Baltimore,
 Maryland; Member, Adjunct Faculty, University of Maryland School of Law. B.A.
 1988, University of Maryland; J.D. 1994, University of Maryland School of Law.
 1995-96, Law Clerk to the Honorable Robert L. Karwacki, Court of Appeals of
 Maryland. 1994-95, Law Clerk to the Honorable John Carroll Byrnes, Circuit Court
 for Baltimore City. My deep appreciation goes to Judges Karwacki and Byrnes;
 Professors Marc Feldman and Richard C. Boldt of the University of Maryland
 School of Law; Professor Robert F. Williams of the Rutgers Law School; Michael
 S. Miller and the staff of the Maryland State Law Library; Jeffrey S. Rosenfeld,
 Esq.; Roger S. Friedman; and my wife, Laurence Anne Ruth, Esq.
 
SUMMARY:
   ...  At least since the publication of Justice Brennan's seminal article in
 1977 advocating a return to state constitutions, there has been an increased
 focus on those rights protected by the state constitution. ...  A history of the
 Maryland Declaration of Rights encompasses at least five distinct phases: 1)the
 convention of 1776 and the adoption of the first Maryland Declaration of Rights;
 2)the constitutional convention of 1850-1851 and the adoption of the Declaration
 of Rights of 1851; 3)the constitutional convention of 1864 and the adoption of
 the Declaration of Rights of 1864; 4)the constitutional convention of 1867 and
 the adoption of the Declaration of Rights of 1867; and 5)the amendments made to
 the constitution of 1867. ...  That document served as the basis of government
 until the first state constitution went into effect in 1776. ...  Despite
 several election defeats, the "Whiggish" conservatives held a majority of the
 delegates to the Constitutional Convention.  When the Constitutional Convention
 began, the Whig party quickly seized control. ...  However, no records of the
 Maryland Constitutional Convention's deliberative process are known to exist.
 ...  It was willing to submit the question of constitutional convention to the
 voters. ...  The final two columns are drafts that were circulated during the
 1776 Constitutional Convention. ...  Second, Maryland's appellate courts
 traditionally have exhibited a reluctance to give independent content to the
 provisions of the Declaration of Rights. ...
 
TEXT:
  [*945]
 
 

   "An independent argument under the state clause takes homework - in texts, in
 history, in alternative approaches to analysis."   n1
 
   Justice Hans A. Linde,Oregon Supreme Court
 
Justice Linde's statement, made at a state constitutional law symposium in
 Maryland,   n2 clearly is true. This article and its accompanying chart make the
 "homework" easier for lawyers developing legal arguments based on the Maryland
 Declaration of Rights.   n3
 
    The article first reviews the basic arguments in favor of independent state
 constitutional jurisprudence. Although familiar to the state constitutional
 scholar, many practitioners are unaccustomed to invoking the often greater
 protections afforded by state constitutions than by the federal document. A
 brief historical sketch of the political and social environs in which the
 various versions of the Maryland Declaration of Rights were adopted follows.
 Specific techniques for incorporating the Maryland Declaration of Rights into
 legal argument also are discussed.
 
    At the heart of this article, in chart form, each provision of every version
 of the Maryland Declaration of Rights is analyzed. The chart, its accompanying
 commentary, and bibliography provide the raw material for crafting arguments
 based on the Maryland Declaration of Rights.
 
    Although the article is, of course, geared toward Maryland lawyers, it is
 useful to all practitioners to assist them in understanding how to develop
 "alternative approaches to analysis" to formulate winning arguments under state
 constitutional law. It also may be helpful as a guide to the type of historical
 research required in other states.   n4
 
    [*946]  I. The Value of Independent State Constitutional Analysis
 
 At least since the publication of Justice Brennan's seminal article in 1977
 advocating a return to state constitutions,   n5 there has been an increased
 focus on those rights protected by the state constitution.   n6 One source of
 this renewed interest can be found in an historical analysis of the political
 theory underlying our federalist system.
 
    The federalist system was designed as a compromise to balance the perceived
 need for a strong national government with the political reality of the existing
 powerful state governments.   n7 The resulting competitive nature of the federal
 system has important implications for the protection of the fundamental rights
 of the people. During the early period of United States history, states, more
 than the national government, had the capacity to act to curtail citizens'
 freedoms.   n8 The national government was constrained to act within the limited
 powers delegated to it by the United States Constitution.   n9 Likewise, the
 United States Constitution was believed to have limited powers over citizens,
 and the Bill of Rights was believed to constrain only the actions of the federal
 government, not states.   n10 State constitutional guarantees of fundamental
 liberties were, therefore, a citizen's front line of protection.
 
    Later, the balance shifted toward the national government in two parallel
 ways. First, as a result of the expansion of national authority in the 1930's
 and 1940's, the national government assumed greater power for direct action on
 the lives of its citizens.   n11 Second, many states refused to enforce the
 basic guarantees of liberty and freedom for their citizens provided in their own
 constitutions.   n12 This, in turn, led to intervention by the United States
 Supreme Court in the form of "incorporating" the guarantees of the United States
 Bill of Rights against the states.   n13
 
    Although there is no necessary relationship between selective incorporation
 and a withering of state constitutional law, citizens, lawyers, and the state
 courts grew conditioned to view the United States Supreme Court as the guarantor
 of our most fundamental freedoms.   n14 Lawyers failed to consult state
 constitutions and to advance claims based upon them.   n15
 
    Today, another paradigm shift is underway. In the political arena, there is
 a distinct trend away from national government as a provider of services, and
 toward an increased role for the states in the provision of services to
 citizens.   n16 Simultaneous with this shift in political models has been a
 shift in jurisprudential models. As it has retreated from the activism of the
 Warren Court, the United States Supreme Court, apart from enforcing the minimum
 constitutional standards, has become more willing to allow states freedom to
 determine their own policies.   n17 In some states, the state supreme courts
 have reacted vigorously and have begun to develop their own independent state
 constitutional jurisprudences.   n18 Other states' courts have been more
 cautious.   n19
 
    Those states that have begun to develop independent analyses of their own
 state constitutions have done so in response to two largely
 incontrovertible theses. First, state constitutions largely predate the Federal
 Constitu-  [*947]  tion.   n20 The chart will illustrate that the large majority
 of the rights protected by Maryland's Declaration of Rights date to 1776,
 thirteen years before the adoption of the first ten amendments to the United
 States Constitution. Second, the United States Supreme Court's decisions must
 address the "lowest common denominator"   n21 that can be applied to every
 state, whereas the state supreme courts have the freedom to tailor more narrowly
 the rules they create to the unique characteristics, history, and traditions of
 their individual states.   n22
 
   II. The History of the Maryland Declaration of Rights
 
 A history of the Maryland Declaration of Rights encompasses at least five
 distinct phases: 1)the convention of 1776 and the adoption of the first Maryland
 Declaration of Rights; 2)the constitutional convention of 1850-1851 and the
 adoption of the Declaration of Rights of 1851; 3)the constitutional convention
 of 1864 and the adoption of the Declaration of Rights of 1864; 4)the
 constitutional convention of 1867 and the adoption of the Declaration of Rights
 of 1867; and 5)the amendments made to the constitution of 1867. Also of interest
 is the proposed Constitution of 1967-1968 and the refusal of Maryland voters to
 adopt that proposal. It is not the purpose of this article to give a complete
 history of the constitutional conventions from which the various versions of the
 Maryland Declaration of Rights arose. Instead, I will attempt to provide a
 reading list for each period so that the practicing lawyer may invoke the milieu
 from which a provision has developed.   n23
 
   A. The Maryland Declaration of Rights of 1776.
 
 From 1774-1776, as the move to independence fermented in the American colonies,
 Marylanders governed themselves by a de facto "government by convention."   n24
 A total of nine conventions were held. The first of these was held June 22-25,
 1774 and the last ran from August 14 through November 11, 1776, concluding with
 the adoption of the first Constitution of the State of Maryland.   n25 While the
 first two conventions addressed policy questions, by the third convention, the
 delegates began to deal with the daily business of running the colony.   n26 The
 fifth convention adopted an "Association of the Freemen of Maryland" that bound
 the people of the province into a "loose political organization."   n27 That
 document served as the basis of government until the first state constitution
 went into effect in 1776.   n28
 
    On June 28, 1776, the eighth convention of Maryland authorized its
 representatives to the Continental Congress to vote for American independence.
 n29 The convention also called for elections to a ninth convention to draft a
 new constitution, to be held beginning August 12, 1776.   n30 In planning the
 Constitutional Convention (which would be the ninth convention), the eighth
 convention retained the same stringent property requirements for the franchise
 that had governed previous conventions.   n31 This led to significant
 disruptions during the election.   n32 Despite several election defeats,   n33
 the  [*948]  "Whiggish" conservatives held a majority of the delegates to the
 Constitutional Convention.   n34 When the Constitutional Convention began, the
 Whig party quickly seized control.   n35 Matthew Tilghman of Talbot County was
 unanimously elected president of the Convention,   n36 a post he held in each of
 the previous conventions he attended.   n37
 
    When the Constitutional Convention of 1776 concluded its work by adopting a
 new constitution and declaration of rights on November 11, 1776, it had produced
 a document that has been called the most conservative of the colonial era
 constitutions.   n38
 
    A modern lawyer researching a provision of the 1776 Declaration of Rights
 has a wide range of materials available, but the materials that one desires most
 do not exist. There are many excellent secondary sources analyzing the
 revolution.   n39 However, no records of the Maryland Constitutional
 Convention's deliberative process are known to exist.   n40
 
   B. The Maryland Declaration of Rights of 1851.
 
 Fletcher Green has described the constitutional developments of the "South
 Atlantic" states of Maryland, Virginia, Georgia, and North and South Carolina,
 from immediately after the Revolutionary War to the 1850's, as a time of
 sectional conflict between "up-country" people and those of the "low country."
 n41 In each state that Green studied, the rise in population and power of the
 western parts of each state came at the expense of the older, rural, and
 conservative eastern portions of the states.   n42
 
    In Maryland, the legislative branch was elected by county rather than
 population, creating huge disparities in political power in the General Assembly
 that favored the Eastern Shore, with its many counties and few residents.   n43
 Despite previous attempts to redistribute the power,   n44 maldistribution
 continued to lead to agitation for constitutional reform, particularly in the
 newer, western parts of the state that included Baltimore City.   n45
 
    Advocates for a constitutional convention also cited a need to limit the
 authority of the General Assembly to appropriate funds and incur debt.   n46 The
 General Assembly had incurred over sixteen million dollars of debt for public
 works projects primarily in the western portion of the state, leading to
 increased taxes statewide.   n47 The Eastern Shore particularly resented the
 increased taxes because the proceeds were used to fund public works projects
 like the Chesapeake & Ohio Canal and the Baltimore & Ohio Railroad that brought
 products from the West and economic competition to the Eastern Shore.   n48
 
    Reformers also urged two changes in the judicial branch.   n49 First, they
 wanted to do away with the appointed judiciary, which they argued was not
 sufficiently democratic, and replace it with an elected judiciary.   n50 Second,
 the expense of running the judiciary was thought to be excessive and cost-saving
 devices were to be considered.   n51 When the convention began, Thomas F. Bowie,
 a convention delegate from Prince George's County,  [*949]  stated that judicial
 reform was the most important issue of the convention, and without it the
 Eastern Shore and Southern Maryland would never have agreed to a convention.
 n52
 
    Behind each discussion at the 1851 Constitutional Convention lurked the face
 of slavery, as residents of the Eastern Shore, and their Southern Maryland
 allies feared that the westerners would abolish slavery given sufficient power
 in the legislature.   n53
 
    For the historian, there are far fewer historical and interpretive works
 explaining the 1851 Constitutional Convention and they are of lesser quality
 than those about the 1776 Constitutional Convention, but excellent journals of
 the convention were kept and are available.   n54
 
   C. The Maryland Declaration of Rights of 1864.
 
 Secession and joining the Confederacy, although threatened, were never
 realistic possibilities for Maryland. To avoid Washington, D.C. being surrounded
 by rebel states, the national authorities kept a close watch to ensure
 Maryland's loyalty.   n55 When Marylanders elected Augustus W. Bradford, the
 Union Party candidate for Governor, on November 6, 1861,   n56 it signaled that
 Maryland would remain with the Union.   n57
 
    The Constitution of Maryland, however, continued to recognize slavery.   n58
 At a minimum, a constitutional amendment was necessary for emancipation,   n59
 but by 1863, many emancipationists felt that a new constitutional convention
 would be preferable.   n60 By this time, the Union Party in Maryland had broken
 into two parties.   n61 The "Unconditional Union" advocated immediate
 emancipation of slaves without compensation, a state constitutional convention,
 and "complete and absolute support of the National administration."   n62 The
 "Conditional Union" proclaimed its loyalty and desire to win the war, but
 condemned the Lincoln Administration's aggressive war measures, including the
 suspension of the writ of habeas corpus.   n63 The Conditional Union also
 supported emancipation, but preferred a slower and more deliberate pace.   n64
 It was willing to submit the question of constitutional convention to the
 voters.   n65 The Democratic Party was in a weakened state and could only field
 candidates in the areas of the Eastern Shore and Southern Maryland.   n66
 
    The 1863 elections   n67 took place in the long shadow of the National
 Government. General Robert C. Schenck of the Union Army Corps, headquartered in
 Baltimore, openly advocated the election of the Unconditional Union ticket.
 n68 Further, to consolidate Union strength and in fear of agitation, Schenck
 virtually took military control of the supervision of the election.   n69 Under
 such conditions, it is not surprising that the Unconditional Union ticket won an
 overwhelming victory.   n70 When the new General Assembly session began on
 January 6, 1864, among the first items was a call for a constitutional
 convention.   n71 By January 8, the measure was adopted and a popular election
 was scheduled for April 6 to determine if the people of Maryland wanted a
 constitutional convention.   n72 The convention received strong support   n73
 and was scheduled to begin on April 27, 1864.   n74 There were  [*950]
 ninety-six delegates elected to the convention: sixty-one Union party members
 from northern and western counties, Baltimore City, Talbot, Caroline, and
 Worcester Counties, and thirty-five Democrats exclusively from the Pro-Slavery
 counties of Kent, Queen Anne's, Dorchester, Somerset, Anne Arundel, Montgomery,
 Prince George's, Charles, Calvert, and St. Mary's.   n75
 
    As outside forces played a large role in the events leading up to the
 Convention, they also continued to play a critical role during the Convention.
 With Lt. General Ulysses Grant's Union Army besieging Petersburg and Richmond,
 Confederate General Robert E. Lee ordered General Jubal A. Early to march up the
 Shenandoah Valley, enter Maryland, and menace Washington, D.C. and Baltimore.
 n76 Lee hoped that the Union Army would be forced to send troops to defend their
 capital, thus relieving the pressure on the Confederate capital in Richmond.
 n77 The main Confederate thrust, although victorious at the battle of Monocacy
 Junction,   n78 was delayed by the battle, thus permitting Union reinforcements
 to arrive,   n79 and eventually requiring their withdrawal.   n80 Small
 detachments of confederate cavalry, made up largely of Maryland natives, fought
 skirmishes in Cockeysville, Govanstown, and Pikesville.   n81 The Constitutional
 Convention, meeting in Annapolis, recessed for ten days during the height of
 Early's raid, but the psychological impact on Convention delegates lasted
 longer.   n82
 
    The constitution that was produced abolished slavery and sought to ensure
 continued Unionist control of the Maryland political landscape by
 disenfranchising southern sympathizers, Copperheads, and Democrats largely
 through the use of "iron clad" loyalty oaths.   n83
 
    The historical literature exploring the civil war period is too voluminous
 to catalog. Even those works limited to Maryland's role in the Civil War are
 numerous.   n84 An excellent source for understanding the 1864 Constitutional
 Convention are its journals, which are the most extensive for any Maryland
 Constitutional Convention until 1967.
 
 

 
   D. The Maryland Declaration of Rights of 1867 and Subsequent Amendments.
 
 The Maryland Constitutional Convention of 1867 is properly described by William
 Starr Myers as the "self-reconstruction of Maryland."   n85 Democrats, outlawed
 from voting after the 1864 Convention, made a tremendous political comeback
 after Governor Thomas Swann declined to enforce the "iron-clad" oaths.   n86 The
 result was a sweep to power by the Democrats.   n87 The entire body of the 1867
 convention was from the Democratic party as the Union party failed to field a
 ticket of nominees.   n88 Although unable to repeal emancipation, the Democrats
 did remove what they considered to be the most objectionable provisions of the
 1864 Constitution, including the "iron-clad" oaths.   n89
 
    Although the 1867 Declaration of Rights and Constitution are still in force
 in Maryland, little scholarship has discussed their inception.   n90 Convention
 records were not kept and the only record of the proceedings is a compilation of
 newspaper accounts.   n91
 
    [*951]  E. The Proposed Maryland Constitution and Declaration of Rights of
 1967-68.
 
 In 1967, Maryland attempted to write a new constitution. It was:
 
 

   supported strongly by all but a handful of convention delegates, it was
 endorsed by all living governors, the highest judges, the legislative leaders,
 party luminaries, the captains of industry, the leaders of labor, the mass media
 of Baltimore and Washington, unlimited numbers of do-gooders, and various
 itinerant experts from out of state. Opposition came from a rag-tag band of the
 pitiful elite - courthouse gangs whose jobs had been excised from constitutional
 status, the know-nothings of the radical right, a few opportunistic politicians,
 selective puritans who took an instant dislike to a single provision - and a
 majority of the voters who turned out on May 14 [, 1968].   n92
 
 

    Despite its defeat at the polls, the proposed Constitution of 1967-68 is an
 important document. Many of the proposals rejected at the time have been adopted
 subsequently in a piecemeal fashion. Moreover, the proposals are seen as a
 high-water mark of good government and it is not infrequent that a proposal will
 be supported by reference to what would have happened had the 1967-98
 Constitution been adopted.   n93
 
    With respect to the 1967-68 Constitutional Convention, there are many
 excellent resource materials, including convention documents and journals and
 secondary sources.   n94
 
   III. How To Read the Chart
 
 Each column of the following chart represents the Maryland Declaration of
 Rights as it existed at a specific time in Maryland history. The left-most
 column is the Maryland Declaration of Rights as it exists on the publication
 date of this article. It is the document initially adopted in 1867 with
 subsequent amendments to date. The second column is the Declaration of Rights as
 adopted in 1867. The third column is the short-lived 1864 Maryland Declaration
 of Rights. In column four is the Declaration of Rights adopted in 1851. The
 fifth column is Maryland's original Declaration of Rights adopted in 1776. The
 final two columns are drafts that were circulated during the 1776 Constitutional
 Convention. While neither of these drafts has (or has had) the force of law,
 they provide useful legislative history.   n95 To the best of my knowledge,
 never before have these drafts generally been available to the public.
 
    I have retained the integrity of each version so that the reader may read
 down a column and see the version in the order adopted, as well as read across a
 row to see the history of a given constitutional provision. As a result there
 are a few gaps where provisions were moved by a convention to a different
 order.   n96
 
    In an analysis found in the footnotes to the chart, I have tried to draw
 upon every possible source to make the chart complete. A major source is the
 records of the Constitutional Conventions, although these are somewhat  [*952]
 uneven.   n97 The annotations also include suggested historical antecedents for
 the Maryland Declaration of Rights, including the Magna Carta and the English
 Bill of Rights of 1689.   n98 These sources are referenced as appropriate.
 
    Other historical antecedents include those constitutions of our sister
 states adopted prior to the adoption of the first Maryland Declaration of
 Rights.   n99 Although New Hampshire,   n100 South Carolina,   n101 Virginia,
 n102 New Jersey,   n103 and Pennsylvania   n104 all adopted constitutions prior
 to Maryland, only Virginia and Pennsylvania attempted declarations or bills of
 rights analogous to Maryland's. Therefore, the provisions adopted by Virginia
 and Pennsylvania are the most relevant antecedents to the Maryland Declaration
 of Rights. The three constitutions provide very similar and, in some cases,
 identical rights.   n105 This is despite the fact that these documents differ
 greatly in many respects regarding the forms of government established.   n106
 Maryland's 1776 Constitution has been described as the most conservative of the
 state constitutions of this period.   n107 Pennsylvania's 1776 Constitution has
 been described as "radical," providing the intellectual counterpoint to the
 Federal Constitution with its unicameral legislature, lack of an executive
 branch, and broad-based suffrage.   n108
 
    The similarities in the rights provisions of the Maryland, Virginia, and
 Pennsylvania Declarations of Rights give rise to two opposing
 interpretations. First, this would seem to support the claim (made about the
 Federal Bill of Rights, but equally applicable to those of the states) that
 those drafting the provisions "did not concern [themselves] primarily with
 stating, with absolute textual precision, the rights that Americans believed
 would best protect their liberty."   n109 Under this view, whatever textual
 differences exist between provisions would be of minor interest because these
 distinctions would not signify an underlying attempt to give different meaning
 to a provision. Conversely, the similarities may suggest the universality of
 agreement that the protection of these rights was important. Even Maryland
 conservatives and Pennsylvania radicals could agree on the general contours of
 these rights.   n110 A natural corollary of this second view is to give
 increased importance to the different words used in the various constitutions.
 Great care would be necessary to ensure that a textual difference indicated an
 intent to give a different meaning, rather than invoke a preferred manner of
 expressing a universally understood meaning. I do not attempt to settle this
 fundamental debate about the nature of text. All relevant provisions of the
 first Virginia and Pennsylvania constitutions have been included in the chart.
 
    Perhaps a word of caution is warranted. The chart frequently will claim that
 a provision of the Maryland Declaration of Rights is derived from a right
 provided by the Magna Carta, or is similar to a right afforded by another
 state's constitution. This does not necessarily mean that the interpretation
 must be identical. The American experience and Maryland traditions have improved
 upon the Magna Carta.
 
    Although the chart refers to many of the cases decided by Maryland's
 appellate courts that are based on the Maryland Declaration of Rights, the case
 citations given are not an exhaustive compilation. The reason for this is
 [*953]  two-fold. First, the Constitutions volume of the Maryland Annotated Code
 and computer sources do an adequate job of providing a complete list of case
 citations decided on or referencing the Maryland Declaration of Rights. Second,
 Maryland's appellate courts traditionally have exhibited a reluctance to give
 independent content to the provisions of the Declaration of Rights. Instead, the
 courts have preferred to hold that the provisions of Maryland's fundamental
 document are "in pari materia"   n111 with analogous federal constitutional
 guarantees.   n112 Because these decisions premised on a "lock-step" approach
 are of limited utility in developing an independent jurisprudence, they
 generally are omitted. Only those cases that are noteworthy, or those in which
 the courts escaped the intellectual straight-jacket of this approach, are cited.
 
   IV. How to Create An Argument
 
 For the practitioner, the factual setting obviously drives litigation. If a
 provision of the Maryland Declaration of Rights might apply colorably to a
 client's case, turn to the chart, read across the row and see how that article
 has evolved over the 220 years of Maryland independence. If the Federal
 Constitution and its amendments do not provide an analogous right, counsel is
 limited only by the Court of Appeals of Maryland's prior interpretation of the
 provision. Arguments can be based on the article's text, history, framers'
 intent, or anything else.
 
    The work is more challenging if the United States Constitution and Bill of
 Rights provide an analogous   n113 right, but the federal court interprets the
 right to exclude a client's claim or defense. In this situation, counsel must
 argue to both the state trial and appellate courts that the federal case law
 interpreting an analogous provision should be discarded and that independent
 Maryland interpretations of the Maryland provisions should be used.   n114 The
 bases for arguing for independent Maryland interpretations are limitless, but an
 excellent starting place is a list of factors developed by Justice Handler of
 the New Jersey Supreme Court in State v. Hunt:   n115
 
 

   1. Textual language differences, including both where a right unprotected by
 the Federal Constitution is protected by the state constitution, and where the
 language used to describe a right protected by both the federal and state
 constitution is so significantly   n116 different to permit independent
 evaluation;
 
   2. a unique legislative history;
 
   3. the existence of state law on the subject prior to the creation or
 recognition of a constitutional right;
 
   4. situations where the different structures of federal and state governments
 compel different results;   n117
 
   5. matters of particular state interest or local concern;
 
   6. unique state traditions; and
 
   7. public attitudes.
 
 

    To Justice Handler's list, I would add virtually anything else, including
 the persuasiveness of dissenting or subsequently overruled opinions in the
 United States Supreme Court, persuasive decisions of sister state courts, or
 [*954]  even a state court's ideological differences with the Supreme Court.
 n118 Any of these bases provide a solid ground for counsel to argue that the
 interpretation of an analogous provision of the Federal Constitution should be
 disregarded in favor of an independent Maryland interpretation. Counsel must
 then convince the court that an alternative interpretation is superior.
 
    Maryland courts will not be persuaded overnight, but I do not doubt that
 carefully-made, persuasive arguments will prevail.
 
   [SEE TABLES IN ORIGINAL]
 
FOOTNOTES:
 
   n1. Hans A. Linde, First Things First: Rediscovering the States' Bills of
 Rights, 9 U. Balt. L. Rev. 379, 392 (1980).
 
   n2. The first annual Judge Irving A. Levine Memorial program was held May 16,
 1979, in College Park, Maryland. The topic was "States' Bills of Rights."
 
   n3. The scope of this article is limited to a discussion of the Declaration
 of Rights and not the main body of the Maryland Constitution. There are
 arguments for and against adopting this limitation. One argument is that the two
 documents are indivisible, and that only together do they give a complete
 picture of the intended balance of power between government and the governed. On
 the other hand, John R. Haeuser suggests that the two documents as an historical
 matter, were intended to be separate. He argues that "the Declaration of Rights
 was regarded not as establishing, but only affiming [sic] those traditional
 rights" that the colonists possessed as English subjects. John Richard Haeuser,
 The Maryland Conventions, 1774-1776: A Study in the Politics of Revolution 88
 (1968) (unpublished M.A. thesis, Georgetown University) (on file with the
 author). By contrast, "the form of government, on the other hand, was
 acknowledged to be revolutionary. Only to this latter document did the
 Convention apply the term 'constitution'." Id. Haeuser concludes that the
 "Declaration of Rights was considered entirely separate and logically prior."
 Id. at 89; see also 1 A. E. Dick Howard, Commentaries on the Constitution of
 Virginia 34-35 (1974) (arguing that members of Virginia Convention of 1776,
 trained in Lockean conceptions, would find a declaration of man's inherent
 rights to be a natural first step after dissolution of bond to Great Britain).
 Without endorsing either of these entirely plausible arguments, I chose to limit
 this article to an analysis of the Maryland Declaration of Rights due to space
 and time constraints.
 
   n4. The Virginia Bill of Rights, Georgia Bill of Rights, and Florida
 Declaration of Rights each have been the subject of similar articles. See 1
 Howard, supra note 3, at 27-313; Dorothy T. Beasley, The Georgia Bill of Rights:
 Dead or Alive?, 34 Emory L.J. 341 (1985); Robert N. Katz, The History of the
 Georgia Bill of Rights, 3 Ga. St. U. L. Rev. 83 (1986-87); Joseph W. Little &
 Steven E. Lohr, Textual History of the Florida Declaration of Rights, 22 Stetson
 L. Rev. 549 (1993).
 
   n5. William J. Brennan, Jr., State Constitutions and the Protection of
 Individual Rights, 90 Harv. L. Rev. 489 (1977).
 
   n6. It is ironic that there is a far greater body of academic literature
 justifying a reliance upon state constitutions than there are articles that
 actually rely upon state constitutions. The justification for the reliance on
 state constitutions given here necessarily is cursory. For a more complete
 analysis, see Robert F. Williams, In the Supreme Court's Shadow: Legitimacy of
 State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. Rev. 353
 (1984). For a bibliography of other resources, see Earl M. Maltz, Robert F.
 Williams & Michael Araten, Selected Bibliography on State Constitutional Law,
 1980-1989, 20 Rutgers L.J. 1093 (1989).
 
   n7. See Shirley S. Abrahamson & Diane S. Gutmann, The New Federalism: State
 Constitutions and State Courts, 71 Judicature 88, 90-91 (1987-1988) (discussing
 impact of federalism on state and federal court systems).
 
   n8. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247-48 (1833).
 
   n9. See U.S. Const. art. I, 8 (enumerating limited powers of Congress).
 
   n10. Barron, 32 U.S. (7 Pet.) at 247.
 
   n11. The unrestrained power of the national congress to legislate under the
 Commerce Clause, and the United States Supreme Court's refusal to check that
 power, reached what may be their outer limits in three cases. See Perez v.
 United States, 402 U.S. 146, 156-57 (1971) (upholding congressional power to
 make and enforce legal penalties for loan sharking based on finding that
 cumulative loan sharking affects interstate commerce); Katzenbach v. McClung,
 379 U.S. 294, 304 (1964) (upholding enforcement of racial discrimination
 prohibition on small restaurant because general racial discrimination affected
 interstate travel and commerce); Wickard v. Filburn, 317 U.S. 111, 125 (1942)
 (upholding Congress's power to regulate single farmer's wheat grown solely for
 his home consumption on grounds that cumulative effect of personal consumption
 might affect interstate commerce). More recent decisions have retreated from
 this position. See e.g., United States v. Lopez, 514 U.S. 549, 551 (1995)
 (holding federal "Gun-Free School Zones Act" exceeded Congress's legislative
 power under Commerce Clause).
 
   n12. Robert F. Williams, Equality Guarantees in State Constitutional Law, 63
 Tex. L. Rev. 1195, 1217 (1985) (stating that equal protection claims brought
 under state constitutions have been rejected by state courts).
 
   n13. See Benton v. Maryland, 395 U.S. 784, 794 (1969) (holding that double
 jeopardy prohibition of Fifth Amendment applies to states through Fourteenth
 Amendment); Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (holding that Sixth
 Amendment right to jury trial applies to states); Washington v. Texas, 388 U.S.
 14, 18-19 (1967) (holding that Sixth Amendment right to compulsory process for
 obtaining witnesses applies to states); Klopfler v. North Carolina, 386 U.S.
 213, 223 (1967) (holding that Sixth Amendment right to speedy trial applies to
 states); Pointer v. Texas, 380 U.S. 400, 406 (1965) (holding that Sixth
 Amendment right to confront witnesses applies to states); Malloy v. Hogan, 378
 U.S. 1, 5 (1964) (holding that Fourteenth Amendment secures against states same
 right to remain silent as Fifth Amendment applies to federal government); Gideon
 v. Wainwright, 372 U.S. 335, 345 (1963) (holding that Sixth Amendment right to
 assistance of counsel applies to states); Robinson v. California, 370 U.S. 660,
 667 (1962) (holding that state law inflicted cruel and unusual punishment in
 violation of Fourteenth Amendment); Mapp v. Ohio, 367 U.S. 643, 656-57 (1961)
 (holding that evidence procured by means of unreasonable search and seizure must
 be excluded from state criminal trials); Irvin v. Dowd, 366 U.S. 717, 722 (1961)
 (holding that Fourteenth Amendment entitles accused to impartial jury); In re
 Oliver, 333 U.S. 257, 273 (1948) (holding that Fourteenth Amendment guarantees
 public trial); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that
 Fourteenth Amendment concept of liberty embraces Free Exercise Clause); DeJonge
 v. Oregon, 299 U.S. 353, 364 (1937) (holding that right to peaceable assembly
 guaranteed by Due Process Clause of Fourteenth Amendment); Near v. Minnesota,
 283 U.S. 697, 707 (1931) (holding that freedom of the press is protected from
 state invasion by Fourteenth Amendment); Gitlow v. New York, 268 U.S. 652, 666
 (1925) (assuming that Fourteenth Amendment protects freedom of speech from
 impairment by states).
 
   n14. Williams, supra note 6, at 353.
 
   n15. Shirley S. Abrahamson, Criminal Law and State Constitutions: the
 Emergence of State Constitutional Law, 63 Tex. L. Rev. 1141, 1161-63 (1985)
 (arguing that most lawyers fail to raise, or raise only in passing, state
 constitutional issues in trial and appellate courts).
 
   n16. See, e.g., Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat.
 251, 575 (providing grants to states to use in administering independently their
 welfare programs).
 
   n17. See, e.g., United States v. Lopez, 514 U.S. 549, 551 (1995) (holding
 that Federal "Gun-Free School Zones Act" exceeded Congress's authority under
 Commerce Clause because it sought to regulate intrastate activity that could
 have no substantial impact on interstate commerce).
 
   n18. See State v. Cadman, 476 A.2d 1148, 1151-52 (Me. 1984) (holding that
 defendant's claim that he was denied state and federal right to speedy trial
 failed under both state and federal constitutional analysis); State v. Ball, 471
 A.2d 347, 350 (N.H. 1983) (holding, in part, that when defendant brought claims
 of unreasonable search and seizure under both state and federal law, court would
 interpret independently defendant's state constitutional guarantees); State v.
 Hunt, 450 A.2d 952, 957 (N.J. 1982) (holding, in part, that individual's
 interest in telephone company's billing records was entitled to protection under
 state constitution even though it was not entitled to protection under Federal
 Constitution); Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981) (in banc)
 (holding, in part, that claim based on state constitutional provision
 guaranteeing rights of prisoners should be addressed prior to federal right to
 privacy claim).
 
   n19. See e.g., Ronald K. L. Collins, Reliance on State Constitution - The
 Montana Disaster, 63 Tex. L. Rev. 1095, 1115 (1985) (criticizing Montana Supreme
 Court for limiting Montana's constitutional protection from self-incrimination
 to protection afforded by Fifth and Fourteenth Amendments); Lisa D. Munyon,
 Comment, "It's A Sorry Frog Who Won't Holler In His Own Pond:" The Louisiana
 Supreme Court's Response to the Challenge of New Federalism, 42 Loy. L. Rev.
 313, 318 (1996) (discussing Louisiana Supreme Court's general failure to
 interpret state constitutional provisions independent from federal standards
 established by United States Supreme Court).
 
   n20. The following states, listed chronologically, adopted their first state
 constitutions before the Federal Constitution became effective in 1789: Delaware
 (Del. Const. of 1776, reprinted in 2 Sources and Documents of United States
 Constitutions 199 (William F. Swindler ed., 1973) [hereinafter Sources and
 Documents]); Maryland (Md. Const. of 1776, reprinted in 4 id. at 372 (1975));
 New Jersey (N.J. Const. of 1776, reprinted in 6 id. at 449 (1976)); Pennsylvania
 (Pa. Const. of 1776, reprinted in 8 id. at 277 (1979)); South Carolina (S.C.
 Const. of 1776, reprinted in 8 id. at 462 (1979)); Virginia (Va. Const. of 1776,
 reprinted in 10 id. at 51 (1979)); Georgia (Ga. Const of 1777, reprinted in 2
 id. at 443 (1973)); New York (N.Y. Const. of 1777, reprinted in 7 id. at 163
 (1978)); Vermont (Vt. Const. of 1777, reprinted in 9 id. at 487 (1979));
 Massachusetts (Mass. Const. of 1780, reprinted in 5 id. at 92 (1975)). Even
 those states whose constitutions post-date the adoption of the United States
 Constitution may contain provisions which pre-date the analogous federal
 provision. This is a result of the heavy borrowing that was done in the adoption
 of later state constitutions. For example, Oregon's original 1859 Constitution
 "adopted Indiana's copy of Ohio's version of sources found in Delaware and
 elsewhere." Linde, supra note 1, at 381. Justice Linde's attribution to Delaware
 as an ultimate source probably is inaccurate as Delaware's 1776 Constitution was
 little more than a copy of Maryland's Constitution of the same year. See infra
 note 99. For a discussion of the borrowing of provisions of state constitutions,
 see Christian G. Fritz, More than "Shreds and Patches:" California's First Bill
 of Rights, 17 Hastings Const. L.Q. 13, 14 (1989) (discussing other 19th century
 state constitutions and their impact on creation of California's first bill of
 rights); Christian G. Fritz, The American Constitutional Tradition Revisited:
 Preliminary Observations on State Constitution-Making in the Nineteenth Century
 West, 25 Rutgers L.J. 945 (1994) (discussing process of state
 constitution-making in west and relationship between state constitutions and
 Federal Constitution).
 
   n21. Alderwood Assocs. v. Washington Envtl. Council, 635 P.2d 108, 115 (Wash.
 1981) (en banc) (citing Project Report: Toward An Activist Role for State Bills
 of Rights, 8 Harv. C.R.-C.L. L. Rev. 271, 290 (1973)).
 
   n22. Lawrence G. Sager, Forward: State Courts and the Strategic Space Between
 the Norms and Rules of Constitutional Law, 63 Tex. L. Rev. 959, 960-61 (1985)
 (discussing strategic relationship between constitutional ideals and rules of
 constitutional law and corresponding need for state courts to interpret
 independently state constitutional law).
 
   n23. There are a few resources that cut across time periods. Several general
 Maryland histories exist. By far the best among these is Robert J Brugger,
 Maryland: A Middle Temperament, 1634-1980 (1989). Also available are Maryland: A
 History, 1632-1974 (Richard Walsh & William Lloyd Fox eds., 1974); 3 J. Thomas
 Scharf, History of Maryland (1967). The Constitutional Convention Commission, in
 1967, wrote a short history of the Maryland Constitution. Constitutional
 Convention Commission, Report of the Constitutional Convention Commission 25-68
 (1967); see also Michael S. Miller, Tracking the United States and Maryland
 Constitution in Literature: Then and Now, 20 Md. Bar J. 5 (1987) (identifying
 primary and secondary sources that discuss the United States Constitution and
 the history of the Maryland Constitution); Charles J. Rohr, The Constitutions of
 Maryland, 24 Johns Hopkins Alumni Mag. 213 (1936) (discussing the framing of
 each of Maryland's four constitutions). There are also works that analyze a
 particular aspect of the Maryland Constitution across the relevant time periods,
 although none are directly concerned with the Declaration of Rights. One such
 work is Charles J. Rohr, The Governor of Maryland: A Constitutional Study, 50
 Johns Hopkins U. Stud. in Hist. & Pol. Sci., No. 3 (1932) [hereinafter Governor
 of Maryland], which provides a constitutional study of the development of the
 governor's office from the colonial period to the time of publication. Another
 is Carl N. Everstine, The General Assembly of Maryland: 1634-1776 (1980), which
 provides a general history of Maryland's General Assembly, with particular focus
 placed on matters of legislative philosophy, organization, and procedure.
 
   n24. Everstine, supra note 23, at 517. During this period Maryland's Colonial
 Governor, Robert Eden, played an inactive role in governmental affairs. Id. at
 521.
 
   n25. Id. at 522, 559-63.
 
   n26. Id. at 522-28.
 
   n27. Id. at 531. The Association of Freemen of Maryland provided that
 political power was vested in the Convention and provided a means for election
 to the Convention. The executive and some judicial power were given to a 16
 member "Council of Safety." Id. at 531-38. Membership was reduced to seven by
 the sixth convention. Id. at 541.
 
   n28. Id. at 531.
 
   n29. Id. at 555; Proceedings of the Conventions of the Province of Maryland,
 Held at the City of Annapolis, in 1774, 1775 & 1776, at 176 (1836) [hereinafter
 Proceedings].
 
   n30. Proceedings, supra note 29, at 184-89.
 
   n31. Id. at 184-85.
 
   n32. See David Curtis Skaggs, Roots of Maryland Democracy: 1753-1776, at
 180-84 (1973) (describing demonstrations protesting method of choosing
 convention's election judges).
 
   n33. Among the election losers were influential conservative leaders from
 previous conventions, including Thomas Stone (a signer of the Declaration of
 Independence), Thomas Johnson, Jr. (Maryland's first governor (1777-1779)),
 William Paca (Governor of Maryland, 1782-1785), Charles Carroll of Carrollton (a
 signer of the United States Constitution and a United States Senator), Thomas
 Contee, Robert Tyler, Josias Beall, Walter Tolley, Jr., and John Moale. It was
 only through considerable maneuvering that William Paca and Charles Carroll of
 Carrollton became the representatives from Annapolis, and Thomas Johnson was
 chosen to represent Caroline County, where he owned no property. Id. at 180,
 182. Ronald Hoffman, by contrast, says that Johnson did own some minimal
 property in Caroline County. Ronald Hoffman, A Spirit of Dissension: Economics,
 Politics and The Revolution in Maryland 172 (1973).
 
   n34. Skaggs divides the Convention into two factions: a small "democratic"
 group and a larger "Whiggish" or "country" party. Skaggs, supra note 32, at 187.
 The democratic group was lead by Rezin Hammond. The Whig group was lead by
 Samuel Chase (a signer of the Declaration of Independence), Thomas Johnson, Jr.,
 William Paca, Matthew Tilghman, Charles Carroll of Carrollton, and Charles
 Carroll, Barrister. Id. at 188.
 
   n35. Id. at 195.
 
   n36. Proceedings, supra note 29, at 209.
 
   n37. Mr. Tilghman, in fact, was President of six previous conventions. Id. at
 3 (first convention, June 22, 1774); id. at 6 (second convention, Nov. 21,
 1774); id. at 11 (fourth convention, Apr. 24, 1775); id. at 19 (fifth
 convention, July 26, 1775); id. at 39 (sixth convention, Dec. 7, 1775); id. at
 165 (eighth convention, June 21, 1776).
 
   n38. Hoffman, supra note 33, at 269.
 
   n39. See Philip A. Crowl, Maryland During and After the Revolution, a
 Political and Economic Study (1943) (discussing predominantly aristocratic
 social makeup of Maryland constitutional framers); Hoffman, supra note 33
 (discussing economic and social movements affecting Maryland's revolutionary
 period); H. H. Walker Lewis, The Maryland Constitution of 1776 (1976)
 (discussing forces that helped shape the Maryland Constitution); Skaggs, supra
 note 32 (same); Edward A. Tomlinson, The Establishment of State Government In
 Maryland: The Constitution of 1776, 9 Md. Bar J. 4 (1976) (same); Haeuser, supra
 note 3 (evaluating ideas and intentions of members of constitutional
 convention); James Alfred Haw, Politics in Revolutionary Maryland, 1753-1788
 (1972) (unpublished Ph.D. dissertation, University of Virginia) (on file with
 the author) (discussing politics of the period). Other works of smaller scope
 also abound, including Thorton Anderson, Maryland's Property Qualification for
 Office: A Reinterpretation of the Constitutional Convention of 1776, 73 Md.
 Hist. Mag. 327 (1978) (taking a critical look at the property ownership
 requirement); Herbert E. Klingelhofer, The Cautious Revolution: Maryland and the
 Movement Toward Independence: 1774-1776, 60 Md. Hist. Mag. 261 (1965)
 (describing events leading up to Convention of 1776). About the revolutionary
 period generally, see Willi Paul Adams, The First American Constitutions:
 Republican Ideology and the Making of the State Constitutions in the
 Revolutionary Era (1980) (discussing general tendencies in early American
 constitutional formation); Fletcher M. Green, Constitutional Development in the
 South Atlantic States, 1776-1860: A Study in the Evolution of Democracy (1930)
 (same); Max Farrand, The Delaware Bill of Rights of 1776, 3 Am. Hist. Rev. 641
 (1898) (comparing 1776 constitutions of Maryland, Pennsylvania, and Delaware);
 John Rainbolt, A Note on the Maryland Declaration of Rights and Constitution of
 1776, 66 Md. Hist. Mag. 420 (1971).
 
   n40. Secrecy was an important consideration for the delegates to the 1776
 Constitutional Convention. For example, the oath of office taken by the Clerk of
 the Convention, Gabriel Duvall (who later served as a Justice of the United
 States Supreme Court), was to "honestly, diligently and faithfully discharge the
 office of clerk to the convention of Maryland," and "not disclose or reveal the
 secrets thereof." Proceedings, supra note 29, at 209 (emphasis added). As a
 result of this penchant for secrecy, no records of the debates of the convention
 were kept. All that remains for the modern historian is the record of the
 proceedings, recording the questions and the resulting votes. Early drafts
 circulated among the delegates also provide some insight into the working of the
 convention. Id.; see also The Decisive Blow is Struck: A Facsimile Edition of
 the Proceedings of the Constitutional Convention of 1776 and the First Maryland
 Constitution (1977) [hereinafter The Decisive Blow] (beginning August 14, 1776).
 
   n41. Green, supra note 39, at 209.
 
   n42. Id. at 146-50.
 
   n43. The History of Legislative Apportionment in Maryland, in Constitutional
 Revision Study Documents of the Constitutional Convention Commission of Maryland
 138-39 (State of Md. 1968) [hereinafter Constitutional Revision Study
 Documents].
 
   n44. The most significant attempt at redistribution came in 1836. This crisis
 was precipitated by the senatorial electors, whose function it was to select the
 15-member state senate. Because of voting inequalities, the Whigs had won 21 of
 the 40 elector's seats despite receiving only about 1/3 of the total votes cast.
 In protest, the Democratic electors refused to attend the electoral college,
 denying the Whigs a quorum. Although sufficient senatorial electors later
 acquiesced and attended the electoral college, the point was not lost on the
 General Assembly. Brugger, supra note 23, at 229; see also Constitutional
 Revision Study Documents, supra note 43, at 138-39; James Warner Harry, The
 Maryland Constitution of 1851, 20 Johns Hopkins U. Stud. in Hist. & Pol. Sci.,
 Nos. 7-8, at 15 (1902) (describing effects of Democratic electors' boycott of
 early stages of 1836 State Reform Convention). During the next session, despite
 a conservative, Whig majority, the General Assembly approved a reform measure to
 reapportion the legislature. 1836 Md. Laws ch. 197, 3-28 (amending districts and
 term lengths of State Senators).
 
   n45. Constitutional Revision Study Documents, supra note 43, at 138-39.
 
   n46. Harry, supra note 44, at 16-17. Rohr discusses this desire to limit the
 General Assembly's authority to incur debt as part of a general, and necessary,
 trend away from the dominance of the legislative branch and toward an equal
 balance of powers.  Governor of Maryland, supra note 23, at 71-72.
 
   n47. Harry, supra note 44, at 34-35.
 
   n48. Id. at 35. Mr. Harry also links these tax protests to objections to Acts
 of 1844, Chapter 280, the "Stamp Tax." Id. at 22; see also 3 Scharf, supra note
 23, at 212-14 (noting resistance of Marylanders to British Stamp Tax).
 
   n49. Harry, supra note 44, at 18-19.
 
   n50. Id. at 19.
 
   n51. According to contemporary accounts, the expenditures for the judiciary
 totaled $ 41,500 in 1840. Id. at 19 n.15. A conflicting report is given in
 William J. Evitts, A Matter of Allegiances: Maryland from 1850 to 1861 (1974),
 in which Evitts reports that "in 1842 Governor Francis Thomas declared that
 Maryland's annual $ 36,000 expenditure was the largest judicial salary bill in
 all the states. In fact, it was not, but most Marylanders took the governor's
 estimate as gospel." Id. at 34 n.47.
 
   n52. 2 Debates and Proceedings of the Maryland Reform Convention to Revise
 the State Constitution 460-61 (1851). This is likely an exaggeration: the
 delegates from the Eastern Shore and Southern Maryland had resisted a
 constitutional convention for as long as possible in order to try to avoid
 changes in slavery laws. Harry, supra note 44, at 20-21.
 
   n53. Id. at 29-67.
 
   n54. A good starting point for researching the 1851 Convention is Harry,
 supra note 44. Although not specifically about the constitutional convention,
 several books and articles explain the political climate of the period. The best
 among these is Evitts, supra note 51. Others include Douglas Bowers, Ideology
 and Political Parties in Maryland 1851-1856, 64 Md. Hist. Mag. 197 (Fall 1969);
 Laurence Frederick Schmeckebier, History of the Know-Nothing Party in Maryland,
 17 Johns Hopkins U. Stud. in Hist. & Pol. Sci., Nos. 4-5 (April-May, 1899). A
 glimpse of the life of a delegate to the 1851 convention, albeit a relatively
 unimportant one, is provided in George M. Anderson, A Delegate to the 1850-51
 Constitutional Convention: James W. Anderson of Montgomery County, 76 Md. Hist.
 Mag. 250 (Fall 1981).
 
   n55. William Starr Myers, The Maryland Constitution of 1864, 19 Johns Hopkins
 U. Stud. in Hist. & Pol. Sci., Nos. 8-9 at 8 (1901).
 
   n56. This election is decried as a "shameless mockery, and its results were
 but the work of fraud and violence." 3 Scharf, supra note 23, at 460. (The home
 of Governor Bradford, located in Baltimore County on the present-day grounds of
 the Elkridge Country Club was burned during the Civil War by Confederate
 soldiers in apparent retribution for the destruction of the Virginia Governor's
 mansion.)
 
   n57. Myers, supra note 55, at 8-9.
 
   n58. Md. Const. of 1851, art. III, 43.
 
   n59. The Emancipation Proclamation, by its terms, did not affect the slaves
 of Maryland. The Emancipation Proclamation, 12 Stat. 1268 (1862); see also Lea
 S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. Pa. L. Rev.
 437, 441 n.22 (1984) (stating that Emancipation Proclamation had "no effect on
 the legal status of slaves in ... Maryland" and other states).
 
   n60. There had been several calls for a constitutional convention, notably in
 1858 and 1862. See Myers, supra note 55, at 13.
 
   n61. See id. at 13 (discussing formation of "Unconditional Union" party).
 
   n62. Id. at 15, 32.
 
   n63. Id. at 15.
 
   n64. See id. (discussing President Lincoln's aggressive war measures and
 Unconditional Union's opposition to them).
 
   n65. See id. (discussing convention bill).
 
   n66. Id. at 16; see also id. at 24 (discussing overall election results).
 
   n67. 1863 was not a gubernatorial election year. Candidates for Comptroller
 of the Treasury headed their parties' tickets. Id. at 14-15.
 
   n68. Id. at 20.
 
   n69. See id. at 17-24 (discussing actions taken by General Schenck, including
 issuance of "General Order No. 53").
 
   n70. Id. at 24.
 
   n71. See id. at 30 (discussing opening message delivered to joint meeting of
 Session of General Assembly).
 
   n72. Id. at 30-31.
 
   n73. The vote was 31,593 in favor of the convention, with 19,524 opposed to
 it. Id. at 34.
 
   n74. Id. at 35.
 
   n75. See id.at 35-39 (discussing delegates in attendance and their respective
 duties).
 
   n76. 3 Shelby Foote, The Civil War: A Narrative: Red River to Appomattox 446
 (1974).
 
   n77. Id.
 
   n78. Id. at 452.
 
   n79. Id. at 454.
 
   n80. Id. at 461.
 
   n81. Myers, supra note 55, at 44-45.
 
   n82. Id. at 44-48.
 
   n83. The "iron-clad" oaths were authorized by the Maryland Constitution of
 1864 in Article I, Sections 4 and 7, and Article III, Section 47. The election
 judges were required to ask a series of questions designed to eliminate the vote
 of any Southern sympathizers.
 
   n84. Research on the Constitutional Convention of 1864 should begin with
 Myers, supra note 55. For politics of the period, see Jean H. Baker, The
 Politics of Continuity: Maryland Political Parties From 1858 to 1870 (1973);
 Charles Branch Clark, Politics in Maryland During the Civil War (1952).
 
   n85. William Starr Myers, The Self-Reconstruction of Maryland 1864-1867, 27
 Johns Hopkins U. Stud. in Hist. & Pol. Sci., Nos. 1-2, at 9-10 (1909).
 
   n86. Governor of Maryland, supra note 23, at 83.
 
   n87. Myers, supra note 85, at 76-77.
 
   n88. Id. at 113.
 
   n89. See supra note 83 for a discussion of the source and nature of these
 oaths.
 
   n90. The only work that I can recommend is Myers, supra note 85.
 
   n91. See Philip B. Perlman, Debates of the Maryland Constitutional Convention
 of 1867 (1923) (noting that sole record of Convention debates consisted of
 newspaper accounts).
 
   n92. John P. Wheeler, Jr. & Melissa Kinsey, Magnificent Failure: The Maryland
 Constitutional Convention of 1967-1968, at 4 (1970) (quoting Royce Hanson,
 Analysis: In Maryland, the Courthouse Gangs and the Little Guys Join Forces to
 Defeat a Reform Constitution, City, July-August 1969, at 38).
 
   n93. Prior to his appointment to the Court of Appeals in Maryland in May of
 1968, Judge Marvin Smith served as a delegate to the 1967-68 Constitutional
 Convention. Judge Smith, more than any other member of the Court, has relied on
 the work of the Constitutional Convention. In In re Special Investigation No.
 244, 459 A.2d 1111 (Md. 1983), Judge Smith adopted a rule for the appropriate
 use of the proposed constitution of 1967-68 as legislative history: "that
 proposed Constitution can effectively be used to interpret our present
 Constitution, that from the Convention of 1867, only in the case of an amendment
 to the present Constitution adopting some of the language of the proposed
 Constitution, as has been done in certain instances." Id. at 1114-15. For other
 opinions of Judge Smith relying upon the 1967-68 Constitutional Convention, see
 Maryland Action for Foster Children Inc. v. State, 367 A.2d 491, 507 (Md. 1977)
 (Smith, J. dissenting) ("The constitutional provisions here under discussion are
 essentially the same as those proposed by the Constitutional Convention of
 Maryland in 1968. I find interesting and persuasive the views expressed at the
 Constitutional Convention on this subject by Delegates Joseph Sherbow and
 William S. James.") (citations omitted); Kadan v. Board of Supervisors of
 Elections of Baltimore County, 329 A.2d 702, 711-12 (Md. 1974) (citing 1967-68
 Constitutional Convention records regarding lay judges of Orphan's Court); State
 Admin. Bd. of Election Laws v. Calvert, 327 A.2d 290, 300-04 (Md. 1974) (citing
 1967-68 Constitutional Convention proposals as relevant legislative history for
 provision granting original jurisdiction over redistricting to the Court of
 Appeals); In re Diener and Broccolino, 304 A.2d 587, 617-19 (Md. 1973) (Smith,
 J., dissenting) (concerning judicial removal provisions of 1967-68
 Constitution).
 
   n94. In addition to Wheeler & Kinsey, supra note 92, other sources discussing
 the 1967-68 Convention include Wayne Richard Swanson et al., Politics and
 Constitutional Reform: The Maryland Experience, 1967-68 (Wash. Ctr. for Metro.
 Stud. October, 1970); Marianne Ellis Alexander, The Issues and Politics of the
 Maryland Constitutional Convention, 1967-1968 (1972) (unpublished Ph.D.
 dissertation, University of Maryland) (on file with the author); Wayne Richard
 Swanson, The Politics of Constitutional Revision: The Maryland Constitutional
 Convention, 1967-1968 (1969) (unpublished Ph.D. dissertation, Brown University)
 (on file with the author). A vast amount of original material from the 1967-68
 Constitutional Convention is part of the collection of the Maryland State Law
 Library and the Thurgood Marshall Law Library at the University of Maryland
 School of Law.
 
   n95. The drafts are among the only pieces of legislative history available
 for the 1776 Declaration, as much of the work was done by committee and not
 recorded.
 
   n96. One example is Article 5 of our current Declaration of Rights. In the
 August 27, 1776, draft, the same guarantees were made by Article 16. To maintain
 the order in both directions, the August 27, 1776, box for the historical
 antecedent of our Article 5 is blank, but a cross reference sends the reader to
 the appropriate box for Article 16 of the August 27, 1776, version.
 
   n97. It is ironic that those Maryland Constitutional Conventions that were
 most meticulous about providing an historical record of their debates and
 proceedings (1967-68 and to a lesser degree, 1864) are those that had the least
 impact, while the more important conventions (1867 and 1776) kept significantly
 fewer records and held many of their discussions in private sessions.
 
   n98. Professor Howard has described the Virginia Bill of Rights of 1776 as:
 
a restatement of the basic principles of the English liberty documents, such as
 Magna Carta, the Petition of Right, and the Bill of Rights. To this English
 heritage were added statements of natural rights philosophy: that power derives
 from the people, that men have certain inherent rights which they retain in
 civil society, and that a majority of the people have the right to alter or
 abolish an existing form of government.
 
1 Howard, supra note 3, at 7. A similar statement could be made about the
 Maryland Constitution. For reference to origins of Maryland provisions in
 historic English sources, see chart infra. For specific provisions drawing on a
 natural rights philosophy, see Tom N. McInnis, Natural Law and the Revolutionary
 State Constitutions, 14 Legal Stud. F. 351 (1990).
 
   n99. Some commentators erroneously have suggested that the Delaware
 Declaration of Rights of 1776 predates Maryland's and was a model for the
 Maryland document. The reverse is true. Maryland's Declaration of Rights was
 drafted first and served as a model for Delaware's, but because of the manner of
 proceeding in the respective conventions, Delaware adopted its Declaration of
 Rights on September 11, 1776, while Maryland's was not adopted until November 3,
 1776. Del. Const. of 1776, reprinted in 2 Sources and Documents, supra note 20,
 at 197 (1973); Md. Const. of 1776, reprinted in 4 id. at 371 (1975).
 
   n100. New Hampshire's original constitution was adopted January 5, 1776, and
 contained no rights-type provisions. See N.H. Const. of 1776, reprinted in 6 id.
 at 342-43 (1976).
 
   n101. South Carolina's initial constitution, adopted March 26, 1776,
 contained no declaration or bill of rights. That constitution proved inadequate
 and was superseded by a new constitution a mere two years later. See S.C. Const.
 of 1776, reprinted in 8 id. at 462-67 (1979); id. at 461 ("[The South Carolina
 Constitution of 1776] was a hasty improvisation, and two years later a more
 systematic scheme of government was substituted.").
 
   n102. The Virginia Bill of Rights was adopted June 12, 1776, and its
 constitution was adopted on June 20, 1776. Va. Const. of 1776, reprinted in 10
 id. at 13-14 (1979). Professor Howard states that the more influential document
 on the constitutions of other states was the penultimate version of the Virginia
 Declaration printed May 27, 1776. It is this version that was reprinted in the
 Maryland Gazette on June 13, 1776. 1 Howard, supra note 3, at 39.
 
   n103. New Jersey's July 2, 1776, Constitution did not contain a separate
 declaration or bill of rights, but several familiar rights provisions were
 codified in that document. See Art. XVI (addressing right to counsel and
 witnesses in criminal trials); Art. XVIII (guaranteeing freedom of religion);
 Art. XIX (establishing guaranty against the establishment of religion); Art. XX
 (stating prohibition against dual office holding); and Art. XXII (providing for
 retention of English common law). See N.J. Const. of 1776, reprinted in 6
 Sources and Documents, supra note 20, at 449-53 (1976).
 
   n104. The Pennsylvania Convention convened on July 15, 1776, and after a
 period of public comment, a constitution was adopted September 28, 1776. John N.
 Schaeffer, Public Consideration of the 1776 Pennsylvania Constitution, 98 Pa.
 Mag. Hist. & Biog. 415, 417 (1974).
 
   n105. Compare infra chart and accompanying commentary (outlining the
 legislative history of the various Maryland constitutions including proposed
 constitutions and drafts), with Va. Const. of 1776, reprinted in 10 Sources and
 Documents, supra note 20, at 48-50 (1979) (containing Virginia's Bill of
 Rights), and Pa. Const. of 1776, reprinted in 8 id. at 278-79 (1979) (containing
 Pennsylvania's Declaration of Rights).
 
   n106. See Robert F. Williams, The State Constitutions of the Founding Decade:
 Pennsylvania's Radical 1776 Constitution and its Influences on American
 Constitutionalism, 62 Temp. L. Rev. 541, 567 (1989) (stating that Maryland's
 constitution was the most conservative of the "founding decade").
 
   n107. Hoffman, supra note 33, at 269.
 
   n108. Williams, supra note 106, at 547-48, 576-79.
 
   n109. Maeva Marcus, The Adoption of the Bill of Rights, 1 Wm. & Mary Bill
 Rts. J. 115, 115 (1992).
 
   n110. See McInnis, supra note 98, at 368-69.
 
   n111. It is my contention that the Maryland appellate courts use the phrase
 "in pari materia" in two distinct ways. The first is used primarily when
 analyzing statutes, but also with regards to the due process and equal
 protection guarantees implicit within the Declaration of Rights. When speaking
 of these subjects, the courts give a nuanced meaning to the phrase "in pari
 materia" meaning that two items arose from the same background and generally
 have complementary, but not necessarily identical, meanings. See, e.g., Aero
 Motors, Inc. v. Administrator, Motor Vehicle Adm'n, 337 A.2d 685, 699 (Md. 1975)
 (holding that although article of Maryland Declaration of Rights concerning due
 process has "been equated" with Due Process Clause of Fourteenth Amendment, by
 judicial construction and application, the two provisions are not synonomous).
 The second meaning of the phrase "in pari materia" is used when the subject is
 any other provision of the Declaration of Rights, and particularly those
 protecting the rights of criminal defendants. In those circumstances the phrase
 "in pari materia" means that the right protected by the state constitution is
 identical to the analogous federal provision, and that the Maryland court will
 defer completely to the United States Supreme Court's interpretation of the
 provision. See, e.g., State v. Bell, 638 A.2d 107, 109 n.2 (Md. 1994)
 (interpreting Article 26 of Maryland Declaration of Rights as being identical to
 Fourth Amendment).
 
   n112. The academic literature of state constitutional law is highly critical
 of the "lock-step" method of constitutional interpretation, wherein the content
 of a state provision is shackled to the United States Supreme Court's
 interpretation of an analogous federal provision. See, e.g., Linde, supra note
 1, at 382-83 (arguing that most state courts rely on interpretations of Federal
 Bill of Rights to determine meaning of state constitutional guarantees); Robert
 F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal
 Constitutional Issues when Disposing of Cases on State Constitutional Grounds,
 63 Tex. L. Rev. 1025, 1047 (1985) (asserting that if states cease to consider
 constitutional provisions from their own perspective then the federal bench
 would be deprived of rich and diverse research); Williams, supra note 6, at 397
 (stating that state court judicial review of state statutes or executive actions
 qualitatively different from Supreme Court's judicial review of same action).
 
   n113. I use the word "analogous" intentionally, but somewhat tentatively. I
 do not want to suggest in any way that the Federal Fourth Amendment right
 against unreasonable searches and seizures is identical to the warrant
 requirement of Article 26 of the Maryland Declaration of Rights. I mean to say
 only that they are analogous, "similar or comparable in certain respects."
 Webster's New World Dictionary (3d college ed. 1997).
 
   n114. Failure to preserve a state constitutional argument at trial likely
 will be interpreted as a waiver of that issue in any subsequent appellate
 proceeding. Md. R. 8-131.
 
   n115. 450 A.2d 952, 965-69 (N.J. 1982) (Handler, J., concurring). I hasten to
 note that I do not subscribe to Justice Handler's factor approach, but that I
 subscribe to the criticism of that approach given in Justice Pashman's
 concurring opinion in Hunt: "At bottom, Justice Handler's approach effectively
 entails a presumption against divergent interpretations of [the state]
 constitution unless special reasons are shown for [a state] to take a path
 different from that chosen at the federal level." Id. at 960 (Pashman, J.,
 concurring). Nonetheless, Justice Handler's factors provide an excellent
 starting place for this discussion.
 
   n116. As must be obvious, different judges and different courts each will
 have different conceptions about what constitutes a significant textual
 difference.
 
   n117. I include within this category decisions of the Supreme Court based on
 federalism concerns, which obviously are not structurally relevant to the Court
 of Appeals of Maryland. A clear example of this is San Antonio Independent
 School District v. Rodriguez, 411 U.S. 1, 58 (1973) (holding education policy to
 be uniquely state concern); see also Sager, supra note 22, at 975-76 (discussing
 role of federalism).
 
   n118. For a discussion of these sources for independent state constitutional
 analysis, see generally Williams, supra note 6 (comparing federal and state
 judicial review and evaluating states' rejection of Supreme Court reasoning).
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