Snider, J.H., Here’s why Maryland politicos must convene a constitutional convention, Washington Examiner, March 12, 2012
Maryland’s Constitution stipulates that every elected official must take an oath of office to “support the Constitution.” But for powerful elected officials, namely the governor and General Assembly members, Maryland’s courts don’t necessarily take such oaths seriously.
When an average citizen or low-level elected official breaks the law, it’s a crime. But when the powerful break their oath of office, it can magically become a “political question.”
Some scholars explain this double standard based on practical power politics. Since judges lack the power of the purse or sword to enforce their rulings and are often dependent for their appointments and perks on the goodwill of the governor and Assembly, they protect their careers by not poking the eye of the political branches.
Following precedent, this is arguably the underlying reason why Gov. Martin O’Malley and the Maryland General Assembly in Annapolis felt they could act with impunity when they violated Maryland’s Constitution and their oath of office by failing to convene a state constitutional convention (con-con).
Maryland voters approved the convening of a meeting on November 2, 2010, by a 54.4 percent majority of those voting on the referendum.
Con-cons were designed by the framers to deal with issues where legislators have a blatant conflict of interest with the public. It was understood that if legislators were given exclusive power to propose constitutional change, then any changes that would restrict their power would probably never get passed.
The con-con was to be the safety valve for this democratic reform malady. As George Mason explained, “it would be improper to require the consent of the National Legislature, because they may abuse their power and refuse their consent on that very account.”
Born of decades of bitter experience with an Assembly opposed to decennial reapportionment based on population, the framers of Maryland’s 1851 Constitution expanded on this principle by requiring that a statewide con-con referendum be periodically placed on the ballot — currently five times a century — regardless of Assembly opposition.
The issue for the public now is not whether to support convening a con-con; it is whether to support one standard for upholding the law for average citizens and a lesser standard for the powerful.
Moreover, even if Maryland’s officeholders weren’t violating their oath of office, they would be violating their democratic duty to represent their constituents. As Article I of Maryland’s Constitution states, “All Government of right originates from the People…; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government.”
A yes vote to convene a con-con merely requires that an election be held to elect delegates to a con-con, which may then propose constitutional reforms for ratification by popular referendum.
Maryland is the only U.S. state where the legislature, through a shamelessly self-serving and twisted interpretation of the framer’s intent, claims a larger popular majority is required to convene a con-con than ratify its recommendations.
This amounts to a claim that the right of the people to put something on the agenda requires a greater majority than to pass it into law. Such a theory violates core democratic norms.
The Assembly knows that if a con-con fulfilled its constitutional function, the result would likely be popular democratic reforms, such as legislative redistricting, transparency and term limits, that aren’t in its political self-interest.
But self-interest is no excuse to violate Maryland’s Constitution, defy the people’s will and hide behind the court’s fear of retribution from the political branches.
The Assembly should fulfill its ministerial duty under Maryland’s Constitution to convene the con-con the people approved.
–J.H. Snider is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics. He is suing the State of Maryland to uphold its Constitution by convening a Con-con.