Joshua Dunlap


Does the Maine Constitution afford guarantees for individual rights that are independent of those afforded by the United States Constitution? As set forth in Part I, the answer to this question is “yes.” Because state constitutions are a “font of individual liberties,” the Law Court has adopted the primacy approach to interpreting the 200-year-old Maine Constitution. Under this approach, state courts must consider state constitutional claims before reaching any federal claims and must not give controlling weight to the interpretation given to the United States Constitution. This approach gives the state constitution the significance that it deserves as a consequential guarantor of the rights of Maine people, comports with principles of federalism, and promotes judicial restraint. Because the Maine Constitution does afford independent protections for individual rights, a further question arises: Does the scope of the rights protected under the Declaration of Rights differ meaningfully from those secured in the Bill of Rights? As discussed in Part II, the text and history of the Maine Constitution indicates that at least some of the guarantees set forth in the Declaration of Rights are broader than those set out in the first ten amendments to the United States Constitution. In particular, the free exercise clause in Article I, Section 3 of the Maine Constitution is more expansive than its counterpart in the First Amendment, as it has been interpreted in Employment Division v. Smith. Article I, Section 3 contains specific language ensuring that the state may not burden the free exercise of religion absent limited, compelling government interests. This text reflects the founders’ commitment, clearly expressed in the constitutional debates prior to the adoption of the Maine Constitution, to a generous conception of religious liberty. As this Article concludes, the Law Court’s primacy approach is sound. Only a firm commitment to independently interpreting the state constitution will ensure that the liberties guaranteed therein will be adequately protected.

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