Court columns

The Constitutional Right to Food

Maine’s protections could be used as a stealth vehicle to thwart gun restrictions.

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UPDATE: On March 28, 2024, the Maine Supreme Court ruled the state’s Sunday hunting ban is not rendered unconstitutional by the 2021 right-to-food amendment.

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 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.”

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

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