On March 15, 2020, Maine turns 200 years old. For any Mainer, especially history buffs, the bicentennial is an occasion worth celebrating. For any legal beagle, the bicentennial is worth celebrating for an additional reason: Maine’s Constitution is also celebrating its 200^th birthday.

The Maine Constitution was adopted at convention on October 29, 1819, approved by the people on December 6, 1819, and became effective on the same date Maine became a state. The Maine Constitution has proven to be one of the nation’s most durable state charters. By my research, only three operative state constitutions are older: those of Massachusetts, New Hampshire, and Vermont. But does the Maine Constitution still matter?

A recent Law Court decision highlights this question. In State of Maine v. Weddle, the Law Court was presented with an interesting search-and-seizure question relating to a Maine statute authorizing law enforcement officers to test the blood of all drivers involved in a fatal, or likely fatal, motor vehicle accident. The Law Court resolved the case as a matter of federal constitutional law by holding the blood test to be a violation of the Fourth Amendment.   The Maine Constitution was not independently analyzed – apparently because no state constitutional claim was raised.

The apparent lack of a state constitutional claim is curious. In a series of cases including State v. Rowe, the Law Court adopted the “primacy approach” to state constitutional interpretation. As explained in State v. Cadman and State v. Flick, this doctrine establishes (1) that state courts should resolve state constitutional issues before any federal constitutional issues, and (2) that federal case law is merely a helpful guide in interpreting the state constitution. In short, the Maine Constitution has independent force and meaning. Though space doesn’t allow for consideration here (a future blog post, perhaps?), the Law Court has offered several justifications for its primacy approach.

But the primacy approach has only been haltingly applied, often because litigants (as apparently in Weddle) either have not presented or have not developed their state constitutional claims. As a result, the Law Court has often not addressed state constitutional issues or has simply interpreted the Maine Constitution to be strictly parallel to the U.S. Constitution – stripping it of independent meaning.

The failure to pursue state constitutional claims and to urge application of the primacy approach in the Law Court has real-world implications. For instance, if the Law Court construes the U.S. Constitution and the Maine Constitution as strictly parallel documents, any change in federal constitutional law can have the effect of overruling state constitutional precedent. This result may or may not be justified as a textual, historical, and jurisprudential matter. Moreover, if trial and appellate counsel do not assert and pursue state constitutional claims where no clear federal law exists, they leave to the side potentially meritorious claims and arguments under state law.

But it is possible that the Maine Constitution may yet remain (as the Law Court said in State v. Larrivee) “the primary protector of the fundamental liberties of Maine people” as it has “since statehood was achieved.” In the recent confirmation hearings for Justice Horton and Justice Connors, I noted that both mentioned the importance of interpreting and applying the Maine Constitution as an independent document. It is up to appellate lawyers to give the Law Court the tools necessary to undertake that task.