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I would pose the question to Delegate
Hardwicke based on his earlier statements,
that we are not dealing with something
that can be interpreted by courts. This
question was raised in the Committee, as to
what would be the effect in any instance
where the constitution spoke in a manda-
tory sense. I am referring now to one illus-
tration, the draft constitution recommenda-
tion in section 5:12 which is not under dis-
cussion, and therefore do not think would
bother anyone: "The State shall be divided
by law into circuits of the Supreme Court
and into circuits of the appellate courts."
If the legislature failed to do this, what
recourse would you think there would be?
THE CHAIRMAN: Delegate Hardwicke.
DELEGATE HARDWICKE: I think
that you are raising a very important ques-
tion, and I think that we are going to have
more of this problem as we go along in this
Convention and this Committee of the
Whole, Delegate Wheatley.
I must confess that I have had a change
of philosophy myself since coming to this
Convention. At the outset I felt that it
would be appropriate for the Constitution
to mandate almost anything and any type
of legislation to the legislature, and that
it would be appropriate to include it in the
constitution. However, upon consideration
of a number of very specific items, it oc-
curs to me that there is a type of legisla-
tion which involves such a wide area of
discretion in the legislative body that it is
almost impossible to mandate the enact-
ment of such legislation to the legislature.
In other words, it occurs to me that when
you are talking about conservation, en-
hancement, improvement, protection of nat-
ural resources, that there is a tremendous
latitude of discretion to the legislature to
determine how best to protect, and the ex-
tent to protect, and those are things which
I cannot see a court substituting its judg-
ment.
For that reason, Delegate Wheatley, I
think that this kind of legislation and the
matter before us involves such a broad
latitude of legislative discretion that I do
not think it is appropriate to mandate the
legislature. However, I do not think that
we have the same considerations in redis-
tricting judicial districts and that kind of
thing, because there, although there is a
certain amount of legislative discretion
also, you still have certain principles which
are more inviolate in nature. You have
your one-man/one-vote principle, which the
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Supreme Court has said is the prime con-
sideration. In judicial districts, for ex-
ample, I can see much firmer areas of de-
markation, much less judicial, or much
more judicial area than legislative discre-
tion. So in answer to the question, this is
an awfully long-winded answer, I think
that we can mandate where there is a min-
imum of legislative discretion but should
not mandate where there is a great deal of
legislative discretion.
THE CHAIRMAN: Delegate Wheatley.
DELEGATE WHEATLEY: If I might
ask one further question, to follow, this up —
THE CHAIRMAN: Do you yield for a
question?
DELEGATE HARDWICKE: Yes.
DELEGATE WHEATLEY: If I am
wrong, correct me. You are saying there
are areas where the court may mandate if
the legislature fails to act, providing there
is a specific degree of clarity in detail?
DELEGATE HARDWICKE: Well, Dele-
gate Wheatley, your proviso is not quite
the one that I would put down. I would say
that the court can act for the legislature
in the absence of the legislature acting for
itself, if there are objective principles
which can be arrived at which the court
can by its judgment implement.
DELEGATE WHEATLEY: One further
question.
THE CHAIRMAN: Delegate Wheatley.
DELEGATE WHEATLEY: To frame
the hypothetical again then, if the provi-
sion said that the General Assembly shall
pass such laws as shall be necessary to
insure clean air for the residents of the
State of Maryland, as determined by health
authorities, you would feel this would be
the type that could be mandated by a court?
THE CHAIRMAN: Delegate Hard-
wicke?
DELEGATE HARDWICKE: No, Dele-
gate Wheatley, because I think that clean
air and these concepts are far too fluid to
admit of any judicial standards.
DELEGATE WHEATLEY: Thank you,
Mr. Chairman.
THE CHAIRMAN: The Chair recog-
nizes Delegate Boyer to speak in opposition
to the amendment.
DELEGATE BOYER: Mr. Chairman, I
would have to speak in opposition to the
amendment.
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