In July 3, 1776, the Maryland Convention in Annapolis adopted a resolution of independence. The next day in Philadelphia Charles Carroll of Carrollton, Samuel Chase, Thomas Stone, and William Paca signed the Declaration of Independence on the new state’s behalf. Independence left a legal lacuna—what were to be the laws and public institutions of this newly created sovereign entity? The Maryland Convention filled the void when on August 14, 1776 it adopted a Declaration of Rights. Article 3 of that Declaration read as follows:

That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used, and practised by the courts of law or equity; . . . and the inhabitants of Maryland are also entitled to all property, derived to them, from or under the Charter, granted by his Majesty Charles I. to Caecilius Calvert, Baron of Baltimore.

This Article 3 adopted three of England’s bodies for the independent state of Maryland: the common law as previously decided by judges; the statutes as previously enacted by parliament; and the institution of property as derived from the feudal tradition.

The Declaration of Rights refers to the mass of common law as it existed in England on July 4, 1776 and makes it the law of Maryland as it remains yet today, except to the extent it has been changed or modified. It remained incumbent on the Maryland courts to decide whether the English common law should be made applicable under the circumstances, and once it was incorporated it was subject to change either by Maryland legislative act or judicial decision.

The Maryland fate of the English laws of intestacy provides a case in point.

Primogeniture—brought to England by the Normans sometime after the conquest in 1066—prescribed the common law right to descent of land. It ordained that in the absence of a will the eldest son would inherit the whole of his father’s landed estate, to the exclusion of other siblings. Primogeniture principles applied in the Maryland colony and in 1776 became the law of the state of Maryland under Article 3 of the Declaration of Rights. But in 1786 that law would change. That year the Maryland General Assembly passed An Act to Direct Descents, which declared that “the law of de[s]cents, which originated with the feudal [s]y[s]tem and military tenures, is contrary to ju[s]tice, and ought to be aboli[s]hed.” . . . It substituted rules of intestate succession, which divided the landed estate among all of the decedent’s living children.

Under a legal system based upon stare decisis, this adoption by the Maryland courts of preexisting common law is unremarkable. And over the course of the ensuing two centuries, old English precedents have been found applicable by Maryland courts in a variety of cases.

Illustrations abound. . . . The English common law crimes (murder, burglary, larceny, and perjury, etc.) were also made part of Maryland law by the 1776 Declaration of Rights. Likewise included within the ambit of this incorporation were rules as to accessoryship and the “notion that an attempt to commit a crime [was] itself a crime.

Today this embrace of the common law of crimes and punishments may prove to be constitutionally problematic. In Rogers v. Tennessee, the United States Supreme Court recognized that the Due Process Clause of the Fourteenth Amendment included “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.” Will the prosecution of obscure and largely forgotten common law crimes run afoul of “criminal due process”?

The nineteenth century case of State v. Buchanan illustrates the problem. A criminal prosecution was brought against a group of Baltimore bankers who had held the controlling interest in the Baltimore branch of the Bank of the United States. The defendants had lent themselves the bank’s money without paying interest and without providing any security. When the bank failed and they were unable to repay the loans, they were criminally prosecuted for a “conspiracy.” Since Maryland had not yet enacted an embezzlement statute the bankers defended themselves on the grounds that the indictment specified no underlying crime that they had conspired to commit. Insider trading and self-dealing might amount to a breach of trust, but they were not common law crimes, they argued.

The trial court discharged the defendants, but on appeal by the state the Maryland Court of Appeals reversed and ordered a new trial. The appeals court considered the allegations of the indictment as establishing a punishable conspiracy at common law-a conspiracy “wrongfully to prejudice a third person.” . . . One wonders whether under contemporary notions of criminal due process the prosecution of “conspirators,” absent predetermined and specified criminal conduct, would pass constitutional muster. Retroactive changes in the elements of the common law of crimes may also be challenged under the Ex Post Facto Clause of the U.S. Constitution. For a twenty-first century example consider Rogers v. Tennessee.

The state of Tennessee had always adhered to the common law rule that a murder conviction would only be upheld if the victim died within “a year and a day” of the defendant’s action. But in Rogers the Tennessee Supreme Court retroactively abolished that rule and sustained the defendant’s conviction for murder despite the fact that the victim lived for fifteen months after the defendant struck the ultimately fatal blow. On certiorari to the U.S. Supreme Court, the defendant argued that his conviction was a violation of the Constitution’s Ex Post Facto Clause.

In a split five to four opinion a majority of the Rehnquist Court upheld the conviction. But Justice Scalia, on behalf of the dissent, forcefully applied his originalist understanding of the Ex Post Facto Clause and concluded that the Tennessee Supreme Court’s retroactive application of its decision to remove the year-and-a-day rule from its jurisprudence rendered Rogers’ conviction for murder invalid. It remains to be seen whether Scalia might muster a majority for this view under the recently reconstituted Roberts’ Court.

Subsequent Maryland Constitutions followed the lead of Article 3 of the Constitution of 1776 in adopting English statutes, but with somewhat different wording. In 1809, out of a concern that applicability of English statutes was left to rest on so vague a standard, the Maryland General Assembly directed Chancellor William Kilty to prepare a report of all such English statutes that were covered by the language of the Declaration of Rights. Kilty’s report, published in 1811, found “one hundred and ninety-one Statutes applicable and proper to be incorporated. Sixty years later in 1870, Julian Alexander published A Collection of the British Statutes in Force in Maryland, According to the Report Thereof Made to the General Assembly by the Late Chancellor Kilty. It consisted of 847 pages of the compiled statutes and supporting notes.

Although never officially adopted, Alexander’s British Statutes has typically been treated as authoritative by the Maryland Court of Appeals There are numerous examples of twentieth and twenty-first century applications of Alexander’s British Statutes. Listed therein and still in force in Maryland today is the twenty year limitation in adverse possession on an owner’s right to enter upon land—imposed by Parliament in 1623—and the original statute of frauds as passed by Parliament in 1676. A parliamentary enactment in 1381 that permitted dispossessed owners to peaceably retake possession of their property without a court’s assistance likewise remains in effect. and in one case the Maryland Court of Appeals may have created some contrarian “incorporation” jurisprudence. In Moxley v. Acker, the court found that the cause of action for forcible detainer, which had been created by Parliament in 1429, had been incorporated into Maryland law by Article 5 of the Declaration of Rights. The foundational English statute provided that when land was wrongfully possessed and “forcibly” held that the justices of the peace should have the sheriff put the malefactors out. . . . In 1974 the Maryland General Assembly undertook to clear up any lingering confusion as to which pre-1776 English statutes remained part of Maryland law. As part of the re-codification of the Annotated Code of Maryland, and as a negative counterpoint to Alexander’s British Statutes, Section 14-115 of the Real Property Article of the Maryland Code lists the eighty British statutes that were in force and effect on July 4, 1776 that are no longer in force and effect.

Garrett Power, Selection from “Adoption of English Law in Maryland,” U of Maryland Legal Studies Research Paper No. 2011-24, pp. 3-12. Copyright © 2011 by Garrett Power. Reprinted with permission.

Justice THOMAS, concurring.

I write separately to address the proper role of the doctrine of stare decisis. In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions-meaning decisions outside the realm of permissible interpretation-over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements

of the law,” Obergefell v. Hodges, 576 U.S., 135 S.Ct. 2584, 2612, 192 L.Ed.2d 609 (2015) (ROBERTS, C.J., dissenting), and the Court’s stare decisis doctrine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text-as the Court is particularly prone to do when expanding federal power or crafting new individual rights-the Court exercises “force” and “will,” two attributes the People did not give it. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) ( capitalization omitted).

We should restore our stare decisis jurisprudence to ensure that we exercise “mer[ e] judgment,” ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.

The Court currently views stare decisis as a “ ‘principle of policy’ “ that balances several factors to decide whether the scales tip in favor of overruling precedent. . . . Citizens United v. Federal Election Comm ‘n, 558 U.S. 310, 363, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (quoting Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 84 L.Ed. 604 (1940)). Among these factors are the “workability” of the standard, “the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” (Montejo v. Louisiana, 556 U.S. 778, 792-793, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). The influence of this last factor tends to ebb and flow with the Court’s desire to achieve a particular end, and the Court may cite additional, ad hoc factors to reinforce the result it chooses. But the shared theme is the need for a “special reason over and above the belief that a prior case was wrongly decided” to overrule a precedent. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 864, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The Court has advanced this view of stare decisis on the ground that “it promotes the evenhanded, predictable, and consistent development of legal principles” and “contributes to the actual and perceived integrity of the judicial process” This approach to stare decisis might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different. The Constitution tasks the political branches-not the Judiciary -with systematically developing the laws that govern our society. The Court’s role, by contrast, is to exercise the “judicial Power,” faithfully interpreting the Constitution and the laws enacted by those branches. Art. III, § 1…

This understanding of the judicial power had long been accepted at the time of the founding. But the federalist structure of the constitutional plan had significant implications for the exercise of that power by the newly created Federal Judiciary. Whereas the common-law courts of England discerned and defined many legal principles in the first instance, the Constitution charged federal courts primarily with applying a limited body of written laws articulating those legal principles. This shift profoundly affects the application of stare decisis today.

Stare decisis has its pedigree in the unwritten common law of England. As Blackstone explained, the common law included “established customs” and “established rules and maxims” that were discerned and articulated by judges. Blackstone, Commentaries on the Laws of England 68-69 (1765) (Blackstone).

In the common-law system, stare decisis played an important role because “judicial decisions [were] the principal and most authoritative evidence, that [ could] be given, of the existence of such a custom as shall form a part of the common law.” Id., at 69. Accordingly, “precedents and rules must be followed, unless flatly absurd or unjust,” because a judge must issue judgments “according to the known laws and customs of the land” and not “according to his private sentiments” or “own private judgment.” Id., at 69-70. In other words, judges were expected to adhere to precedents because they embodied the very law the judges were bound to apply.

“Common law doctrines, as articulated by judges, were seen as principles that had been discovered rather than new laws that were being made.” 3-4 G. White, The Marshall Court and Cultural Change, 1815-35, History of the Supreme Court of the United States 129 (1988). 3 “It was the application of the dictates of natural justice, and of cultivated reason, to particular cases.” 1 J. Kent, Commentaries on American Law 439 (1826) (Kent); see id., at 439-440 (the common law is “ ‘not the product of the wisdom of some one man, or society of men, in any one age; but of the wisdom, counsel, experience, and observation, of many ages of wise and observing men’ “). The common law therefore rested on “unarticulated social processes to mobilize and coordinate knowledge” gained primarily through “the social experience of the many,” rather than the “specifically articulated reason of the few.” T. Sowell, A Conflict of Visions: Ideological Origins of Political Struggles 49, 42 (1987).

In other words, the common law was based in the collective, systematic development of the law through reason. Importantly, however, the common law did not view precedent as unyielding when it was “most evidently contrary to reason” or “divine law.” Blackstone 69-70. The founding generation recognized that a ‘‘judge may mistake the law.” Id., at 71; see also 1 Kent 444 (“Even a series of decisions are not always conclusive evidence of what is law”). And according to Blackstone, judges should disregard precedent that articulates a rule incorrectly when necessary “to vindicate the old [rule] from misrepresentation.” Blackstone 70. He went further: When a “former decision is manifestly absurd or unjust” or fails to conform to reason, it is not simply “bad law,” but “not law” at all. Blackstone 70. This view-that demonstrably erroneous “blunders” of prior courts should be corrected- This view of precedent implies that even common-law judges did not act as legislators, inserting their own preferences into the law as it developed. Instead, consistent with the nature of the judicial power, common-law judges were tasked with identifying and applying objective principles of law discerned from natural reason, custom, and other external sources-to particular cases. See Nelson 23-27.

Thus, the founding generation understood that an important function of the Judiciary in a common-law system was to ascertain what reason or custom required; that it was possible for courts to err in doing so; and that it was the Judiciary’s responsibility to “examin[e] without fear, and revis[e] without reluctance,” any “hasty and crude decisions” rather than leaving “the character of [the] law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.” Federal courts today look to different sources of law when exercising the judicial power than did the common-law courts of England. . . .Instead, the federal courts primarily interpret and apply three bodies of federal positive law-the Constitution; federal statutes, rules, and regulations; and treaties. 4 That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing “customs” or “rules and maxims.” We operate in a system of written law in which courts need not-and generally cannot -articulate the law in the first instance

For the reasons explained above, the Court’s multifactor approach to stare decisis invites conflict with its constitutional duty. Whatever benefits may be seen to inhere in that approach-e.g., “stability” in the law, preservation of reliance interests, or judicial “humility,” Tr. of Oral Arg. 20, 41-42-they cannot overcome that fundamental flaw.

In any event, these oft-cited benefits are frequently illusory. The Court’s multifactor balancing test for invoking stare decisis has resulted in policy-driven, “arbitrary discretion.” The Federalist No. 78, at 471. The inquiry attempts to quantify the unquantifiable and, by frequently sweeping in subjective factors, provides a ready means of justifying whatever result five Members of the Court seek to achieve The true irony of our modem stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible It is no secret that stare decisis has had a “ratchet-like effect,” cementing certain grievous departures from the law into the Court’s jurisprudence. Goldberg, supra, at 96. Perhaps the most egregious example of this illegitimate use of stare decisis can be found in our “substantive due process” jurisprudence. pill McDonald v. Chicago, 561 U.S. 742, 811, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The Court does not seriously defend the “legal fiction” of substantive due process as consistent with the original understanding of the Due Process Clause. And as I have explained before, “this fiction is a particularly dangerous one” because it “lack[s] a guiding principle to distinguish ‘fundamental’ rights that opposed to practical) basis for applying a heightened version of stare decisis to statutory-interpretation decisions. Statutes are easier to amend than the Constitution, but our judicial duty is to apply the law to the facts of the case, regardless of how easy it is for the law to change.”

U.S. Supreme Court, Selection from “Gamble v. United States,” 2019.