More than a week after Mainers passed a new constitutional amendment guaranteeing a “right to food,” it’s still uncertain what it will look like when they begin to exercise that new right.
The new constitutional amendment that earned more than 60 percent of the vote on Nov. 2 guarantees individuals “a natural, inherent and unalienable right” to raise or harvest their own food within some limits. But what exactly that right means will likely remain unclear until there’s a legal challenge, which could land on the doorstep of local governments across Maine.
The amendment grants Mainers the right to save and exchange seeds as well as grow, harvest, raise, produce and consume food of their own choice as long as an individual doesn’t steal, poach, trespass or otherwise abuse public or private lands.
That broad guarantee has some municipal officials concerned that local rules could be declared void in the shadow of the amendment. And they worry about being the object of a costly lawsuit challenging such rules.
Orono, for example, requires residents living in a medium-density residential district to have a permit to keep barnyard animals such as pigs and donkeys. In Bangor, only residents in the city’s agricultural zone can keep chickens.
“We don’t know if reasonable municipal police powers are going to be void moving forward,” Orono Town Manager Sophie Wilson said at a recent Town Council meeting. “I don’t think we want to be the test case.”
Being the test case would leave local taxpayers footing the legal bill, said Rebecca Graham, a legal advocate with the Maine Municipal Association.
“That means that taxpayer money is going to be going to litigation instead of maybe an improvement on delivery of services at that local level,” she said.
The amendment’s emphasis on individuals’ choices is what makes its impact so uncertain and challenging to predict — and dependent on courts to define the scope, Graham said. That sets Maine’s new right to food apart from international human rights law that defines the right to food as having access to adequate food, she noted.
“In there, the rights are to ‘save, grow, harvest and consume the food of your choice,’” Graham said. “The language elevates personal choice, not availability, not nutritional adequacy, not accessibility nor sustainability.”
Democratic Sen. Craig Hickman of Winthrop, one of the new amendment’s main legislative champions, said he doesn’t know what the amendment’s immediate impact will be on municipalities, but litigation is possible.
He said concerns raised by municipal officials “aren’t really concerns at this point. They’re losing arguments.”
“Municipalities will figure it out,” he said. “Mainers don’t really need anybody to tell them what’s up. We can figure it out for ourselves. And if we can’t, well, then, the courts may, from time to time, ultimately have to rule on the matter.”
A lack of concrete case law around the right to food or any sort of similar state constitutional amendment in the U.S. leave things wide open when it comes to legal interpretation, Graham said.
Yet Maine’s historical limits on agriculture, hunting and other food policy areas could be key guideposts for courts as they decide how to interpret the amendment, Dmitry Bam, a constitutional law professor at the University of Maine School of Law, said this summer.
Despite the sweeping wording of the amendment, every constitutional freedom is subject to reasonable limits, he noted.
“That’s how I think the court would approach these kinds of rights,” Bam said. “If you want to do something that has historically been prohibited, the court would view these historical exceptions as the limit on that right.”