The Maryland Constitution: One of the Nation’s Oldest, Was a Model for Other States

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

The Maryland Constitution is one of the nation’s oldest and one of its longest, and many of its provisions have served as models for other states. It created a strong executive and grants only the legislature the power to propose amendments, leaving citizens without a mechanism to change the constitution on their own. Still, recent amendments, including protection for reproductive rights, have aligned with current issues facing citizens of both Maryland and the nation.

History

Maryland has had four constitutions. The first, created in 1776 at the invitation of the Continental Congress, was written quickly during the Revolutionary War. It had two parts: a Declaration of Rights, based largely on a draft from Virginia, and a Form of Government, which recreated existing colonial governmental structures modified only for the transition from monarchy to republic. The 1776 constitution contained significant property ownership requirements to vote and hold office and thus was considered conservative for the Revolutionary era. By 1810, however, the property-ownership qualifications had been amended out. A second constitution, written in 1851, created the modern structure of the Maryland Constitution and added significant protections for the institution of slavery. During the Civil War, in 1864, Maryland adopted a third constitution, principally to emancipate enslaved people. It also would have instituted a statewide system of free public schools. In 1867, in the immediate aftermath of the Civil War, Maryland adopted its current constitution, the purpose of which was to repeal as much as possible of the previous document. For example, the statewide free school system established in 1864 was reduced to a guarantee of a “thorough and efficient” system of schools. It is this reactionary constitution, although heavily amended, that continues to govern Maryland today.

In reaction to decisions of the U.S. Supreme Court requiring “one person, one vote” in state legislatures, the state held a constitutional convention in 1967. Maryland voters rejected the proposed constitution, however, and the legislature had to be reapportioned by other means. Many of the ideas of the 1967 constitutional convention have been adopted, piecemeal, in later years. (To read more about Maryland constitutional history, I highly recommend Herb Smith and John Willis’s book Maryland Politics and Government: Democratic Dominance.)

Declaration of Rights

Maryland’s Declaration of Rights bears clear evidence of its roots in Virginia’s May 27, 1776 draft Declaration of Rights. Many current provisions are the same as they were in 1776 or have received only minor updates. For example, several provisions guaranteed rights to free men. After emancipation, those were amended so that the text applies to all men. A similar update has never been made to reflect that women too, possess these rights. The Maryland Declaration of Rights protects many of the same rights — or at least analogous ones — as the U.S. Constitution’s Bill of Rights, including rights to a free press (which implies a right of free speech), to freedom of religion, and against “cruel or unusual” punishments. While it does not contain a literal guarantee of due process, the declaration protects substantive and procedural regularity and equal treatment through its “Law of the Land” provision. The Maryland Declaration of Rights also contains a “right to a remedy” provision, derived from the Magna Carta, which became a model for other state constitutions. It is one of only a handful of states that does not protect an individual right to own firearms. In 1972, Maryland voters added an equal rights article, preventing discrimination on the basis of sex and in 2024, in the wake of the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, adopted a guarantee of reproductive rights.

Unique Characteristics

Maryland’s constitution has some unique quirks.

For example, Article 23 of the Declaration of Rights makes jurors the judges of both law and fact, rather than just fact as is typical. This provision was intended to preserve a right of jury nullification in criminal prosecutions. It operated, however, as a tool of racial oppression. The Maryland Supreme Court has determined that it is an error to give jury instructions based on this provision and that a defendant whose jury was previously instructed in this way is entitled to a new trial.

The constitution’s racist roots lurk just below the surface. The last overtly racist provision, which required a population of 10,000 “white inhabitants” to create a new county, was deleted in 1976. Article III, Section 46, which looks like a benign power of the General Assembly to receive grants from the United States, began its life as a demand for the federal government to compensate former owners of enslaved people for the property they lost through emancipation.

The constitution’s protections for religion are also worth highlighting. Maryland’s first colonial proprietors, the Lords Calvert, were Catholic, and Maryland was long-considered a haven for people of diverse religious faiths. Despite this, the provisions of the Maryland Declaration of Rights protecting religious freedom — especially as compared to more modern constitutions — are rather weak textually and, as a result, federal constitutional standards are generally found to apply.

Article 37 of the Maryland Declaration of Rights, meanwhile, requires holders of public office to make a “declaration of belief in the existence of God.” It was considered an expansive provision at the time it was written, as it permitted non-Christians to serve in office. Since 1961, however, enforcement of it has been held to violate the U.S. Constitution’s First Amendment because it discriminates against nontheists. Nevertheless, more than 65 years later, this clearly unconstitutional provision remains in the state’s Declaration of Rights.

A final example: State constitutions are at times criticized for being too specific or too parochial. In the Maryland Constitution, people poke fun at an article that discusses off-street parking in the City of Baltimore. In fact, its purpose was to allow the city to use its eminent domain powers to resolve a downtown parking crisis.

Governance 

Article II of the Maryland Constitution creates a strong executive, including an aligned and jointly elected lieutenant governor, a broad power to appoint important statewide officials, a strong veto power, the power to initiate legislative redistricting, the power to initiate governmental reorganization, and an executive budget system (including a line-item veto power). Nevertheless, the Maryland governor’s power is also shared with other independent executive branch officials. First, the attorney general and the comptroller are separately elected. Second, the State Board of Public Works (made up of the governor, the comptroller, and the legislatively selected treasurer) exercises much of the state’s executive authority especially in contracting and procurement. The Board of Public Works is organized in Article XII of the Maryland Constitution, but all of its powers are statutory.

Article III creates the Maryland General Assembly as a part-time legislative body, meeting annually for a 90-day session beginning in January. The constitution does not define the legislative power, but it is understood to be “plenary,” meaning that the General Assembly can legislate on any topic not prohibited by the federal Constitution, federal law, or the state constitution itself. The legislative article contains many Jacksonian-era limitations on the state legislature including a one-subject rule, a descriptive title rule, and a prohibition on special laws. Maryland also has a referendum power by which the voters may reject a law passed by the General Assembly. Interestingly, however, the Maryland Constitution does not have an initiative power, by which citizens may propose new laws for adoption by the voters, bypassing the state legislature altogether. Maryland is one of only a few states with one but not the other.

Under Article IV of the Maryland Constitution, the judiciary is composed of four levels: the Supreme Court of Maryland, an intermediate Appellate Court of Maryland, a court of general trial jurisdiction in each county (and in the independent City of Baltimore), and a statewide court of limited jurisdiction, known as the District Court of Maryland.

The state’s constitution assigns to the governor, with the advice and consent of the state senate, the unrestricted power of judicial appointment. Since the 1960s, however, governors have voluntarily limited themselves to a modified “Missouri Plan” system, by which the governor appoints from a list of candidates vetted by a nominating commission. Circuit court judges (general trial jurisdiction) are subject to a modified partisan system of elections for a term of 15 years. Appellate judges serve 10-year terms and are subject to retention elections, in which voters cast a yes or no ballot on whether the judge should sit for another term. The constitution also creates a system of Orphans’ Courts, responsible for administering decedents’ estates, so named because they were originally meant to protect the rights of orphaned children from claims to their inheritance by adult relations. The requirements to serve as an Orphans’ Court judge differ among the jurisdictions. The constitution also provides for the election and four-year terms of a clerk of court, a register of wills, and a sheriff in each county and in the city of Baltimore.

There is a provision of the Declaration of Rights recognizing the separation of powers between the branches of government, and that separation is rigorously enforced by the courts.

The Maryland Constitution, unlike many that were written later, does not create any administrative, regulatory, or quasi-judicial agencies. All such agencies are created by statute, not the constitution.

Local Government

There are several provisions in the state’s constitution that establish county and municipal government. Maryland allows three different systems of county government, including charter home rule, in which the local jurisdiction adopts a local “constitution” for its own governance; code home rule, in which the county adopts a model “constitution” written by the General Assembly; and the county commissioner system, in which the local government has no legislative powers but must request laws be written for it by the state legislature. Each system is subject to further regulation by the Maryland General Assembly. The constitution also creates a system for the adoption of a form of municipal home rule. Municipalities are, for historic reasons, scattered irregularly throughout the state and many populous cities lack municipal home rule. The city of Baltimore, which is by far the largest metropolitan area in Maryland, gained home rule earlier than any other jurisdiction. Since 1797, Baltimore has had charter home rule and does not have municipal home rule. Finally, it is worth noting that Article XI, which purports to establish the government of the city of Baltimore is largely — if not completely — obsolete and has been superseded by other provisions.

Constitutional Amendments

The Maryland Constitution may be changed in only two ways: as the result of a constitutional convention or, more commonly, as proposed by the General Assembly and then approved by the voters. There is no mechanism in Maryland for citizen-initiated amendment.

There have been five significant amendments in recent years. First, in 2008, the constitution was amended to permit slot machine gambling. In 2020, it was amended to refine the budget provisions, giving the legislature more control of the budget process. A pair of constitutional amendments in 2022 authorized the legalization of cannabis and changed the names of Maryland’s appellate courts in an effort to make them similar to those in sister states. Finally, as described above, in 2024, in reaction to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that there is no federal constitutional right to abortion, the constitution was amended to protect reproductive freedom.

Judicial Interpretation

The Supreme Court of Maryland uses two different approaches to constitutional interpretation. With respect to the constitution and those Declaration of Rights provisions without an analogue in the federal constitution and Bill of Rights, the goal is to find the construction that best achieves the intentions of the constitution’s framers and the people who adopted it. The court is willing to consider a variety of different source materials to aid in this determination. For provisions of the Maryland Declaration of Rights that have an analogous provision, the Supreme Court of Maryland will generally follow in lockstep — what it calls in pari materia — with the federal interpretation, although on rare occasion the court will be willing to come to an independent interpretation, as it recently did with respect to the right of confrontation with respect to expert reports. Recent appointees to the Supreme Court of Maryland have expressed interest in independent constitutional interpretation and we will await future decisions to see if this goal is realized.

Dan Friedman is a judge of the Appellate Court of Maryland

Suggested Citation: Dan Friedman, The Maryland Constitution: One of the Nation’s Oldest, Was a Model for Other States, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 28, 2025), https://statecourtreport.org/our-work/analysis-opinion/maryland-constitution-one-nations-oldest-and-model-other-states