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Musings on the Maine Constitution’s Bicentennial, Coronavirus Edition

The coronavirus shut-down has been anything but a slow-down for this attorney-blogger, but it hasn’t entirely prevented me from continuing to muse about the Maine Constitution during its now-cancelled bicentennial celebration. So I thought I would give the Constitution a little more of the attention it is due, despite the coronavirus. (A welcome respite to think about something else, no?)

When I last blogged about the Maine Constitution, just before its 200th birthday, I asked whether it still matters. The Law Court seems to think the answer is “yes”: under its primacy doctrine, the Law Court has said the state constitution should be given force and meaning independent of the U.S. Constitution. The Law Court has also offered a few reasons for this primacy doctrine, and they are worth pondering.

The Law Court offered one reason in State v. Larrivee, where it observed that the Maine Constitution is the “primary protector of the fundamental liberties of Maine people.” Indeed, until the federal Bill of Rights was incorporated, the Maine Declaration of Rights was the sole protection for individual rights vis-à-vis state law. And isn’t just a copy of any existing constitution, but is instead a unique document with its own meaning. It has a rich history that reflects the influence of not only the U.S. Constitution, but also the constitutions of sister states and even the input of James Madison and Thomas Jefferson.

The Law Court offered another reason in State v. CaouetteAccording to the Court, construing federal “opinions as expressing a limitation upon the scope” of state constitutional rights “would be to stand the state-federal relationship and the Fourteenth Amendment to the Constitution of the United States on their heads.” That is, if states retain primary sovereignty, then federal courts should not have the power to implicitly alter the scope of a state constitution simply by interpreting the scope of federal constitutional rights. The primacy approach, then, prevents state courts and state constitutions from shifts in doctrine at the federal level.

A third reason appears in the Law Court’s decision in State v. Cadman. There, the Court observed that “it is a fundamental rule of appellate procedure to avoid expressing opinions on constitutional questions when some other resolution of the issues renders a constitutional ruling unnecessary.” A court should likewise “forbear from ruling on federal constitutional issues before consulting [the] state constitution.” There is, in short, no need to consider the federal constitution when the state constitution provides an adequate remedy – the Fourteenth Amendment only comes into play if state law does not provide adequate protection for a citizen’s rights.

The challenge with all of this, of course, is that it takes work – attorneys need to provide the Law Court with separate analysis of the text and history of the Maine Constitution if the primacy approach is to be followed with any consistency. But, for the reasons outline above, that work has real value.

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©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 125

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About this Author

Joshua Dunlap Civil Litigation Attorney
Partner

Joshua Dunlap, a member of Pierce Atwood’s Litigation Group and Appellate & Amici team, focuses his practice on civil litigation at both the trial and appellate levels. He appears in federal as well as state court, representing clients in various commercial litigation matters. 

Joshua regularly defends clients in complex litigation, including class actions and multidistrict litigation. Much of his practice has involved representing financial institutions, manufacturers, retailers, and other institutional clients in state and national consumer class actions involving various...

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