Maryland’s Constitution mandates a referendum every twenty years on whether to call a constitutional convention. This mandate is an extension of article 1 of the Declaration of Rights, which provides that the people of the state “have at all times, the inalienable right to alter, reform or abolish their Form of Government, in such manner as they deem expedient.”

On Nov. 2, 2010, Maryland voters took the first step in the reform process by voting in favor of a convention. Notwithstanding the constitutional direction that following a vote for a convention the General Assembly at its next session “shall provide by law for the assembling of such convention and the election of delegates thereto”, the Assembly has refused to carry out its constitutional duty. The question now is whether there is any other way to implement the fundamental right of the people to reform their state government.

Over 100 years ago the Pennsylvania Supreme Court in similar circumstances concluded that there were only two options available to the people: throw the rascals out in the next legislative election or armed revolution.

The first is almost useless because not all members of the legislature are elected each year and there are other issues that may determine a legislative election. The second, of course, is neither desirable nor necessary.

In Maryland, there is another option. The Court of Appeals in 1967 ruled that members of the Assembly could serve as delegates to a convention, notwithstanding the constitutional ban against a person holding two public offices. The Court determined that a constitutional convention exists independent of the Constitution.

It is, rather, a direct agent of the people and the means by which the people exercise their reserved and inherent right to reform their government. The Court further explained that in implementing the call for a convention, the Assembly is not carrying out its legislative function under the Constitution but merely assisting the people in their constitution making.

Following this logic, if the Assembly fails to implement the convention call, it is certainly appropriate for a Maryland court to fill the void. It would not be violating separation of powers because that doctrine arises under the Constitution. As the Court of Appeals has held, implementing a call for a convention is independent of the Constitution. Even under accepted constitutional law today, courts can properly take jurisdiction in political matters such as reapportionment, contrary to the views held in 1873.

The election districts for delegates are provided for in the Constitution. All a court needs to do is order the holding of the election, fix the date for their first meeting and their compensation (presumably that of Assembly members), and direct that the State pay the convention’s reasonable expenses. The convention would be on its own. If necessary, the court could also order an election on the convention’s proposals.

Popular sovereignty is, or should be, more than just a political slogan. It is at the heart of our system of government. The people’s right to hold a convention is so fundamental that it is generally held to exist even if not mentioned in an existing constitution.

The People of Maryland have spoken. An obstructive Assembly should not be allowed to stand in the way. If it will not assist the People in exercising their sovereign right, the Maryland courts should do so. They have no higher responsibility.

–Robert J. Martineau is a retired professor of law, former Maryland assistant attorney general, and former secretary of Maryland’s 1967-68 Constitutional Convention.  He now lives in Florida.

Source: This article was published in various Maryland Patches during April 2012.