Want to Earn an Honest Living? Know Your History

Anthony Sanders · November 18, 2019

“Maryland is an independent sovereign with its own Constitution.” So begins the opening brief in Pizza Di Joey, LLC v. Mayor and City Council of Baltimore, at the Maryland Court of Appeals, the highest court in the Old Line State. The case, litigated by my colleagues at IJ, is a challenge to an ordinance preventing food trucks from parking within 300 feet of a competitor. As good as mobile pizza is, the case is about much more than that. Fundamentally, it’s about history.

If you’re interested in legal history, constitutional history, or really just history at all, the brief is a fun read. You can read it at this link. Here I will just give a quick background on the case and then a brief dive into the deep past supporting the challenge.

IJ joined with two food truck entrepreneurs, Joseph Slek-Nejad, owner of Pizza Di Joey, and Nicole McGowan, owner of Madame BBQ, to challenge the anti-competitive ordinance. And it’s unquestioned that the law is meant to restrict competition. The law only prevents the food trucks from parking within 300 feet of a business that sells “the same type of food product” as the vendor. IJ argues that it is unconstitutional to use public power for private gain—here, the gain of the restaurants protected from food trucks. And how do we argue it’s unconstitutional? By appealing to the voice of the sovereign, Maryland’s state constitution (the actual sovereign is not the state itself, of course, but its people).

Last adopted as a new constitution (although it’s been amended since then) in 1867, the first Maryland Constitution came into force in 1776, just months after the Declaration of Independence. That version, and subsequent ones, had a Declaration of Rights, Article 21 of which stated:

That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.

And the language is virtually unchanged since then; that mandate, including “the law of the land” is still the law of the land today, in Article 24 of the current Declaration of Rights.

Those words ought to be at least mildly familiar to you. They are copied from Article 39 (or Article 29, depending on the version you look to) of Magna Carta, the peace treaty King John agreed to with his barons in the field of Runnymede in 1215. Here is what the original Magna Carta said:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre.

Oh, sorry, that’s the original original Magna Carta (it was written in Medieval Latin). Here it is in translation:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Other than the “Royal We” and some minor other changes, Maryland’s version is basically a similar translation of the text from 1215. Those words that originally were meant to protect the barons of Norman England now protect all the people of modern Maryland.

The challenge to the 300 foot rule argues that language protects from unreasonable governmental regulation the rights the people had at common law. This is because Maryland’s courts have repeatedly said that is the purpose of Article 24. So, how do you look to what rights existed at common law in 1776? By looking to old English law. Indeed, according to the Maryland Charter of 1632 (granted by King Charles I (before his head was chopped off)) the laws of Maryland must be “consonant to Reason, and . . . agreeable to the Laws, Statutes, Customs, and Rights of this Our Kingdom of England.” How do we know the rights of English common law at that time? By looking to judicial decisions of the period. And luckily for Maryland’s entrepreneurs, that period was a golden age of English jurisprudence, lead by judge Edward Coke.

In case after case, and often relying on Magna Carta, the common law courts of the time ruled against the Crown in cases involving monopolies and special privileges ostensibly granted to various businesses. My colleagues cite one of the leading examples in their brief, Darcy v. Allein, more commonly called the Case of Monopolies. There the court found the Crown to have abused its powers in awarding an exclusive right in importing playing cards. As the court explained, the common law abhorred monopolies, calling them “against the common law, and against the end and scope of” the legislation at issue in the case. Although Coke wasn’t the judge in Darcy, he was in later, similar, cases, including ones addressing monopolies on medical training and saltpeter mining.

Further, Coke was the preeminent jurist read by colonial lawyers in 1776 (Blackstone wouldn’t come to prominence until later), and his well-known rulings would have been understood to readers of the Law of the Land Clause at that time.

Which brings us back to IJ’s clients. Just as English Kings and Queens abused their powers, Baltimore’s city council has abused its own in granting monopoly-like protections to brick-and-motor sellers of pizza and barbeque. And the protection against that abuse goes back to an understanding of what happened in 1215, 1610, 1632, 1776, and 1867. Want to practice constitutional law? Start by reading your history.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.