Maine - Some Post-Election Observations on the Right to Food

A Constitutional Food Fight Could Lie Ahead

Editorial of The New York Sun

November 5, 2021 

One of the little-noticed things that happened on election day is that voters in Maine ratified the nation’s first state constitutional amendment enshrining a “right to food.” It puts the hay — so to speak — down where us mules can get to it. It declares “that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health, and well-being.”

That might seem anodyne. The news we see, though, is the that it could someday ignite a constitutional food fight with the U.S. government. That’s because in one of the most famous decisions of the Supreme Court, the justices declared — unanimously — that the United States Constitution’s commerce clause grants the Congress power to prohibit a farmer from growing food on his own land for his own use.

That case arose from Ohio. It was levied by a farmer named Roscoe Filburn. He grew wheat in excess of the quotas allowed him by the Agricultural Adjustment Act. That law was passed by Congress in 1933, as part of President Roosevelt’s New Deal. The idea was to support prices for crops. It even used taxpayers’ money to pay farmers not to plant. The government used it to jump on Filburn for planting more than his quota.

The government insisted that it had the power to regulate what Filburn could grow on his own land. It cited the part of the Constitution known as the commerce clause. It appears in Article 1, Section 8, where the government gets most of its powers. The commerce clause empowers Congress to regulate commerce among the several states. It has been called the most important non-military power the government has.

Filburn, a mere mortal, tried to protest that the wheat he had grown over the quota was for his personal consumption and use on his own farm. Because it wasn’t going to be sold to anyone, anywhere, and would remain in Ohio, if not Filburn’s personal stomach, it was beyond the reach of Congress, even with the commerce clause. The Supreme Court, in a decision written up by Justice Robert Jackson, told Filburn to take a hike.

It might well be, Jackson wrote, that Roscoe Filburn’s wheat was never marketed. Nonetheless, “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.” Even the New York Times editorialized that “under this interpretation it is difficult to see how any economic activity can escape Government regulation.”

Which brings us back to today and the amendment voters just ratified in respect of Maine’s constitution. It says that “all” individuals have a “natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being. . .”

Individuals have that right, Maine says, “as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food.” Maine seeks to establish that through what we like to call a “positive right,” meaning it comes from Maine’s government. That is a contrast to the way most rights are secured in the federal constitution.

The way that parchment secures our rights is not by doling out the rights itself but by prohibiting Congress from passing any laws interfering with rights deemed having been given by God. This approach is sometimes called “negative rights.” In any event, Maine’s constitution now conflicts with the American constitution as enshrined in a unanimous — super- — precedent of the Supreme Court marked in Wickard v. Filburn.

Hence this alert to a clash down the road and we look forward to it. Wickard v. Filburn, after all, is one of the underpinnings of big government rule in America. Not that it’s uncomplicated. Maine’s “right to food” amendment was launched in the state legislature with bipartisan support, including by many who want to block the government from meddling in their lives. Yet we also note that food is one of the “rights” being hawked by the United Nations.

That can’t be good. The UN has even established a UN Special Rapporteur on the Right to Food. We kid you not. We lack for the clairvoyance to see how this conflict might be joined. It’s not hard to imagine, though, that at some point a case is going to arrive in which federal do-gooders are going to try to regulate growers in Maine and a Maine farmer will try to shelter under the new provision of the state constitution. Americans might have to choose among the New Deal, Maine, and the United Nations.

Maine - Some Post-Election Observations on Question 1

Looking back on the crazy, convoluted campaign on Question 1

Jill Goldthwait

The Ellsworth American

November 5, 2021 

The election is over. More on that when final results are in, but in the meantime it is still worth taking a look at the process-related questions that plagued voters on Question 1, the “Clean Energy” corridor.

The Question 1 campaign, like all campaigns, was a matter of who could yell the loudest and spend the most. Campaigns are not reliable sources of information on an issue or a candidate. Citizens tried to do their due diligence on Question 1 despite the obstacles set up by the clash and fury of the campaign.

Many media outlets tried to present both sides of the issue, but these back-and-forth volleys are not helpful. In one hour-long program, representatives of both sides were given equal time to present their cases. The “yes” guy would say “blah blah blah,” then the “no” guy would say: “That is absolutely not true. Blah blah blah.” Whereupon the “yes” guy would say: “That is so false! Blah blah blah!” What do we learn from that? Nada, since most of us do not have the expertise to sort out the claims for ourselves.

Even the most diligent voters were hard-pressed to decide how to vote, but the question posed most frequently was “Why the heck is the question so complicated?” Here’s why. The “Citizens’ Initiative” is a constitutional right in Maine whereby the electors, by petition, may propose a bill to the Legislature for consideration. The bill may be enacted by the Legislature (“without change”) or referred to the voters for their approval or rejection. The Maine Constitution dictates the process; state statute directs the actual drafting of a question.

The law directs the secretary of state to “write the question in a clear, concise and direct manner that describes the subject matter … as simply as is possible.” Please refrain from derisive hooting unless you have tried this yourself.

The first challenge with Question 1 was the yes-means-no conundrum. This is specifically addressed in state law (Title 21-A, Chapter 11): “The question … must be phrased so that an affirmative vote is in favor of the direct initiative.” So, when the question proposes a ban, an affirmative vote supports the ban.

For a simpler yes or no vote on the pipeline, the question would have to be posed as “Do you want the pipeline?” Then a yes or no vote would be simpler. But that would mean the petitioners would have had to propose the question in terms contrary to their interest.

Next, state law requires the secretary of state to “advise petitioners that the proper suggested format … is a separate question for each issue.” Considerations include whether a voter “would reasonably have different opinions on the different issues,” whether “more than one question would help voters to better understand the subject matter,” and whether the questions “can be enacted or rejected separately without negating the intent of the petitioners.”

The three questions in Question 1 (to build a high-impact transmission line, to allow the Legislature the final say and whether the outcome should retroactively apply to the pipeline’s existing permit) were challenged in court by Maine Rep. Chris Caiazzo, but Maine’s Supreme Court upheld Secretary of State Shenna Bellows’ decision to allow it as a single question.

Those are the parameters within which a referendum question must be written, but the actual drafting is a long dance with multiple partners. Secretary Bellows is clear. The citizens have a constitutional right to petition by referendum and it is her job to facilitate that constitutional right.

The Secretary emphasizes that “the question is not the law.” The question is a summary of the intent of the law, but the ballot includes the complete statutory language that would be enacted. Like all state laws, it can be a challenge for the average voter to read and understand.

The secretary of state is the overseer of the process, but a referendum petition rockets all over the state system before it gets to the voters. Petitioners must gather the signatures (numbering 10 percent of the voters in the most recent gubernatorial election), the signatures must be certified. Secretary of State’s Office staff and the Revisor’s Office (where legislation is drafted), the Office of Fiscal and Program review and the Attorney General’s Office may all be involved at one point or another.

Over the years, secretaries of state have utilized legal resources, various state staff, citizen volunteers, reviews of past referendums, drafting of several possible wordings for consideration, public hearings, public comments and the Flesch-Kincaid Readability Test to work toward the best achievable version of what goes on the ballot. Close examination of the process reveals just how difficult that assignment is. As referendum questions become more numerous and more complicated, it is not going to get any easier.