Earlier this year, I asked a question on this blog: does the Maine Constitution, now in its 200th year, still matter? Shortly after, I offered a few reasons why it should still matter, including the Maine Constitution’s unique history, the nature of the state-federal relationship, and the doctrine of constitutional avoidance. In the early 1980s, these considerations led the Law Court to adopt the “primacy approach” to constitutional interpretation, which, simply stated, means that courts give the state constitution independent force and meaning rather than simply interpret it in lockstep with the federal constitution. In the following decades, the Law Court has not always consistently applied this approach. In a notable pair of recent opinions, however, the Law Court expressly reaffirmed it, giving a clear answer to the question I raised: yes, the Maine Constitution does still matter.
Though it had lain largely dormant for many years, the primacy approach returned to the forefront in June with a notable concurrence by Justice Connors in State v. Chan. In Chan, the court considered a claim that the state’s failure to preserve certain evidence violated due process. In rejecting the claim, the court observed that the due process protections available under the federal and state constitutions were coextensive. The court noted that the appellant had invited the court to adopt broader protections under the state constitution, but had failed to “explain what in the Maine Constitution would be the basis for doing so.” Justice Connors wrote separately, observing that the state due process clause is not necessarily constrained by federal law. Justice Connors noted that, under the primacy approach, the court “interpret[s] the Maine Constitution first, examining – independently of the United States Constitution – the constitutional question pursuant to Maine values.”
The court returned to the theme a few days ago, expressly reaffirming the primacy approach in Maine v. Fleming. There, the court held that, whenever a trial includes racial issues, “trial courts are required to thoroughly probe the issue of racial bias” in the jury. Citing Justice Connor’s concurrence in Chan, the court observed that the primacy approach mandates that the court “first look to the Maine Constitution, with federal precedent serving as potentially persuasive but not dispositive guidance with respect to constitutional provisions with similar goals.” The court observed, though without much elaboration, that the Maine Constitution required the result it reached independent of the U.S. Constitution.
These decisions reemphasize the importance of carefully considering and analyzing state constitutional claims, where applicable. As I’ve noted, this requires work on the part of counsel, particularly appellate counsel. Chan underscores the importance of explaining why the Maine Constitution should be interpreted in a particular manner. Similarly, the primacy approach, properly applied, requires work on the part of the Law Court. In his recent book, 51 Imperfect Solutions, Judge Sutton of the Sixth Circuit argued that little is gained from simply choosing “sides” based on “federal debates and federal authorities” and that a state court should “marshal the distinct state texts and histories” in independently analyzing its state constitution. That is, he argued, a state court “must be able to explain its decisions in terms other than the personal preferences of those who make them.” Justice Ireland of the Massachusetts Supreme Judicial Court has similarly noted that careful analysis of the relevant state text, history, and statutory and common law is necessary to “legitimize” state constitutional analysis.
Chan and Fleming are a promising indication that the Maine Constitution will receive the attention it deserves. They also stand as a reminder of the need to do the spadework required to properly interpret that document.