Matthew Tilghman and this Constitutional Time in the USA

“A constitution is a set of fundamental principles of government.  In America, those principles, consented to by the people, provide a rule of law for both the government and the people. The rule of law substitutes for the whim of a dictator, the divine right of a monarch, the word from an oracle or seer, the calculations of an astrologer, or the revelation of a priest or prophet.” – Charles Rees, University of Baltimore School of Law, ‘Remarkable Evolution: The Early Constitutional History of Maryland’

With conservatives flexing their majority muscles on the Supreme Court as witnessed by the historic Roe vs. Wade 6-3 reversal, it’s clear that more and more power will be shifting – at least for the foreseeable future – from the federal government to state governments.

Such shifts have long been part of US history: the tug of war between federal power and states’ rights.  Those chronic struggles are as predictable and nearly as seismic and cataclysmic as earthquakes, volcanoes and tsunamis spawned by the planetary urges of Earth’s shifting tectonic plates.

As a result, we can expect democracy to become much more up close, visceral and personal. In Maryland, we will have to pay closer attention to the state constitution whose origins date back to 1776.

Eastern Shoreman Matthew Tilghman, a prominent planter and alternating resident of Queen Anne’s and Talbot counties, played a prominent role in those origins. Tilghman, by that time, had already been part of Maryland’s governing assembly for more than 20 years. The fact that he was Speaker of the state’s House of Representatives in 1774 when revolutionary rumblings were growing louder shows the faith placed in him by other Marylanders.

A strong proponent of independence from Great Britain, he headed Maryland’s delegation to the nation’s first Continental Congress and supported and voted for the Declaration of Independence. It’s said that he would have been one of Maryland’s signers had he not hightailed it back to his home state to preside over the drafting of Maryland’s first constitution.

On Aug. 14, 1776, barely six weeks after the July 4 signing of this nation’s Declaration of Independence, Tilghman’s Maryland colleagues elected him to chair the committee charged with preparing a “declaration and charter of rights and a form of government” for Maryland.

The opening paragraphs of the constitution demonstrate that he and his compatriots in Maryland and elsewhere believed passionately in a government “of the people, by the people and for the people” as articulated years later by President Abraham Lincoln in his Gettysburg Address.

The preamble to that document and its first four articles state:

DECLARATION OF RIGHTS

“We, the People of the State of Maryland, grateful to Almighty God for our civil and religious liberty, and taking into our serious consideration the best means of establishing a good Constitution in this State for the sure foundation and more permanent security thereof, declare:

“Article 1. That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient.

“Art. 2. The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.

“Art. 3. The powers not delegated to the United States by the Constitution thereof, nor prohibited by it to the States, are reserved to the States respectively, or to the people thereof.

“Art. 4. That the People of this State have the sole and exclusive right of regulating the internal government and police thereof, as a free, sovereign and independent State.”

So, if the nation’s constitution doesn’t allow or prohibit something, Maryland’s constitution says it’s up to the state’s people to decide an issue.

In the case of the Roe vs. Wade reversal, here’s what the US Supreme Court majority ruled: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

Maryland anticipated this eventuality in 1991 when its legislators passed laws protecting access to abortion. That instance also demonstrates the limited referendum power given to the state’s residents in its constitution.

The constitution allows the state’s residents to challenge bills passed by lawmakers and enacted by the governor.  Residents can launch an effort to gather a prescribed number of citizen signatures to a petition which would place the challenge question on the ballot during the next US House of Representatives election, which comes in every even year.

That’s exactly what opponents to Maryland’s 1991 abortion protection legislation did in 1992. They gathered enough signatures to have the question placed on the 1992 statewide ballot in their effort to reverse the legislation.  The state’s voters, however, upheld the legislation by a 62 percent to 38 percent margin.

In March of this year, Maryland’s General Assembly – again anticipating the Roe vs. Wade reversal – passed legislation to further protect and increase access to legal abortion.  Through the same referendum provision in the state’s constitution, that legislation could also be challenged and placed on the 2022 statewide ballot.

Maryland’s constitution, however, does not allow the state’s citizens to initiate their own proposed amendments to the law outside of the normal legislative process.  Such “initiated constitutional amendments” are allowed in 18 of the nation’s other states – mostly western and most notably California – but not in Maryland.

If that were the case here, abortion opponents could – for example – petition for a referendum vote on a total abortion ban such as is being discussed for the national level by former Vice President Mike Pence.

What Maryland’s constitution does prescribe, however, is what is called an automatic ballot referral.  That means that every 20 years, a provision is automatically placed on the statewide ballot asking voters whether they want a constitutional convention held to consider revisions or amendments to the state’s constitution.

If at least 55 percent of the total number of voters in that year’s statewide election call for a constitutional convention, then that process could begin which would allow citizens to petition for specific revisions or amendments which would then go to referendum for approval or rejection. The last automatic ballot referral came and went in 2010 with not enough citizen votes to trigger a convention.

The next is scheduled for the 2030 ballot.

It’s all a mouthful and probably more than what Matthew Tilghman envisioned back in 1776.  But he and his colleagues, and those who revised the original constitution in the years after, were wise enough to provide mechanisms for the people to govern, as they intended.

Given the tenor of the times, we can reasonably expect to see those mechanisms used a lot more in the years ahead.

Stay tuned.

Dennis Forney has been a publisher, journalist and columnist on the Delmarva Peninsula since 1972.  He writes from his home on Grace Creek in Bozman.