Maine’s supreme court has its first opportunity to define its state’s unique amendment.

Welcome to the State Court Report newsletter.

In 2021, Maine voters enshrined a right to food in their state constitution. It’s one of many state constitutional provisions without a federal analogue — from the right to a clean and healthful environment in Montana, to the right of employees to organize and to bargain collectively in Illinois, to the right of crime victims to be informed when an accused or convicted person is released from custody in Arizona.

Many such provisions have been relegated to dusty law library shelves. But there is also a long history of courts enforcing state-specific provisions in education funding and several other arenas. And litigators are increasingly relying on state constitutions in areas such as reproductive rights and economic liberty. As more people start blowing off the dust and digging into their state’s constitution (they’re long!), look for more of these provisions edging into the spotlight.

In a fascinating new essay

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for State Court Report, Northeastern professor Martha F. Davis contextualizes Maine’s new amendment and previews a Maine Supreme Judicial Court case being argued this fall, Parker v. Department of Inland Fisheries & Wildlife, which seeks to use the right to food to challenge the state’s ban on Sunday hunting. It offers a glimpse into how advocates might develop arguments based on broadly worded rights — and raises the specter of unintended consequences.

The right to food is well established in international human rights law. But as Davis explains, while several states protect the right to hunt and fish, Maine is the first and only state to establish “a natural, inherent and unalienable right to food,” which includes “the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing.” The amendment's broad language draws on natural law and at least raises the possibility that the government has an obligation to provide inhabitants with food. Lauded by human rights advocates when it was adopted, there are similar campaigns burgeoning in other states.

Parker is the first opportunity for the high court to define this new right, and it might surprise readers that hunting regulations were the first thing to be challenged (it surprised me). The plaintiffs argue that they supplement their diet with hunting and that work and their children’s school obligations force them to hunt on the weekend. A right to food, they claim, means that restrictions on their ability to hunt for personal consumption must be evaluated under an onerous strict scrutiny standard. Alluding to these implications, some proponents of the amendment have described it as a “second amendment for food.”

It remains to be seen if this argument will hold sway. The plaintiffs lost in the trial court, and Davis writes that the amendment’s text and history create major headwinds for the plaintiffs’ claims. A specific reference to hunting was deleted from the proposed amendment. And there is no evidence that voters thought that creating a right to food would impact hunting laws. But should the court adopt the plaintiffs’ argument, Davis warns that it could “serve as a stealth vehicle for frustrating reasonable restrictions on guns and gun use in the context of hunting.”


Expanding Local Voter Power in Georgia

Earlier this year, the Georgia Supreme Court ruled that the state’s “home rule” amendment authorizes ballot initiatives by voters to repeal or modify county ordinances. Emory professor Fred O. Smith explains how this ruling could open the door to using a ballot measure to halt the building of “Cop City,” a controversial Atlanta training facility for police and firefighters, under a similarly worded statute. He writes, “If city governing bodies pass legislation that contradicts the will of the voters, voters may have the ability to directly challenge such decisions.” Read more

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Book Preview: Campaign Money and Judicial Elections

Northwestern professor Michael S. Kang previews his new book with professor Joanna Shepherd, Free to Judge: The Power of Campaign Money in Judicial Elections, which combines judicial interviews with empirical analyses of campaign finance and judicial decision-making. “This book is the first academic work to rigorously establish that sitting judges’ decisions are influenced by their future need for campaign funds to get reelected,” he writes. Read more

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Territorial Courts, Constitutions, and Organic Acts

U.S. territories such as Puerto Rico and Guam each have their own distinct court systems and governing documents. In a new explainer, the Brennan Center’s Michael Milov-Cordoba provides an overview of territorial courts and constitutions, including the complex relationship between territorial and federal law. Territorial governing documents contain “analogues to all or most of the federal bill of rights, including rights to free speech, due process, and equal protection, and most of these documents also contain positive rights,” Milov-Cordoba notes. Read more

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ICYMI: A New Majority on Wisconsin's State Supreme Court

On August 1, Wisconsin Supreme Court Justice Janet Protasiewicz was sworn in, creating the first liberal majority on the state high court in 15 years. The University of Wisconsin’s Dustin Brown wrote about the stakes at play in her election: “Abortion access, electoral maps, and executive powers all hang in the balance.” Read more

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What Else We’re Reading

As a part of a series, the National Conference of State Legislatures published a comprehensive resource

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detailing state constitutional and statutory provisions for term limits.


Notable Cases

Chevron v. County of Monterey

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, California Supreme Court

Ruled that a local ordinance limiting oil and gas extraction contradicted state law and was therefore preempted under the state constitution. // Reuters

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Draper v. State of Arizona

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, Arizona Supreme Court

Clarified the standard under the state constitution for when a defendant can compel discovery of evidence from a crime victim, in a case addressing the “clashing” of the federal Constitution’s right of defendants to present a complete defense and the Arizona Constitution’s Victims’ Bill of Rights. // Arizona Central

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Wright v. Wisconsin Elections Commission

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& Clarke v. Wisconsin Elections Commission

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, Wisconsin Supreme Court

Two petitions were filed in the Wisconsin Supreme Court challenging the state’s legislative map as an extreme partisan gerrymander. // The Cap Times

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Brennan Center for Justice at NYU School of Law

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