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I like Latin. I was forced to take it in high school, but it turned out to be enjoyable. There was a coherence and logic in its rules. English was a bit different, although it could be understood through tough thorough thought.
America’s legal foundations have a healthy sprinkle of Latin phrases. Like Article I, Section 11 of the Maine Constitution: “The Legislature shall pass no … ex post facto law.” The United States Constitution has a similar prohibition.
That is where the ongoing debate over the Central Maine Power “Clean Energy Corridor” referendum question begins. And it is why, no matter what happens on the November ballot, the fight will inevitably be resolved in the courts.
The constitutional prohibition of “ex post facto” laws has, since 1798, been interpreted to apply solely to criminal laws. So CMP’s opponents don’t need to worry about the Constitution, right?
Back in 1997, a unanimous U.S. Supreme Court noted “[i]n both the civil and the criminal context, the Constitution places limits on the sovereign’s ability to use its lawmaking power to modify bargains it has made with its subjects.”
In practical terms, ex post facto laws.
That is the core argument of the “No on 1” campaign. It’s a good one — .and a bad one. It is good because it appeals to foundational principles of our nation. It is bad because, at its root, it is an argument about process. And if you are arguing about process, you’ve already lost.
Until you get to court.
The “Yes on 1” campaign — the corridor opponents — wave away any concerns about “retroactivity.” Some argue that retroactive laws are no big deal; legislators can already change the law after the fact. That is not wrong, but it doesn’t make it right.
In Federalist 44, James Madison wrote that ex post facto laws “are contrary to the first principles of the social compact, and to every principle of social legislation.”
He went on to say that Americans “have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”
In other words, they are not a good look.
The reason advocates have included the “retroactivity” language in their proposed bill comes from the Maine Supreme Court’s ruling that last year’s proposed referendum question was unconstitutional.
Instead of focusing on a specific project, they have crafted a law that would attempt to nominally cast a wide net while effectively trying to limit itself to the corridor question. More specifically, they focus on the ongoing legal battles over leases issued by the Maine Bureau of Parks and Lands.
Which brings us back to a different Latin phrase: ultra vires.
Mucking around with retroactive laws is not a good approach to policy, even if it can eek around constitutional prohibitions. The essence of American law is supposed to be clarity and predictability. People can then order their affairs, however unpopular, and protect their private property interests. The World Bank notes private ownership rights should be at the “top of the global agenda” in fighting poverty.
That is why the fight shouldn’t be about which “ex post facto” laws are good; none are. Instead, if the executive branch lacked the authority to lease CMP certain state lands, the battle should be waged in court, and the lease will be voided as “ultra vires.”
Question 1 will almost assuredly win at the ballot box. And I believe it will be knocked down as unconstitutionally “ex post facto” lawmaking. Then, corridor opponents will probably win their argument on the “ultra vires” nature of the lease.
Thank goodness for Latin.