Maryland 2010

In 1931, Philip Perlman provided Maryland's Legislature with a legal rationale for not calling a constitutional convention approved in 1930 by a simple (“ordinary”) majority of voters. Maryland's Legislature subsequently viewed Perlman's opinion as providing an authoritative legal rationale not to call conventions in 1950 and 2010 that also received an ordinary majority supporting a convention call. Perlman's fixer role in Maryland politics and background as an enabler of Jim Crow racial segregation makes him a potentially controversial vehicle for such an argument. But Perlman's impressive legal credentials, including Maryland Secretary of State and U.S. Solicitor General, dominate his Maryland reputation. Perlman used a variety of interpretive tools to make his 29-page case, including text, precedent, and original intent. All his arguments omitted key facts and legal arguments. Collective action problems help explain why Perlman's deeply flawed opinion has remained unchallenged. Constituted powers in Maryland now treat Perlman's interpretation as settled law. In the early 1960s, prominent litigants sought to clarify the interpretation of the disputed majority denominator language, but Maryland's supreme court dismissed their claim as an abstract question. Sophisticated legal opinion in 1930 and 1950 viewed the denominator question as a political question not subject to judicial review.