The Maine Constitution: Like the State’s Population, Stubbornly Itself

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

Maine’s constitution is one of the oldest still in effect. In some ways, it has been deliberately innovative and progressive — expanding the franchise relative to the constitution it was modeled on, for example, or the adoption of a first-of-its-kind right to food. Like so much about the state (and the country), however, its development has been uneven and unsteady, and it reflects two centuries of shifting public views on government, governance, and individual rights.

History

Maine’s constitution has been in effect since 1820, when the state finally managed to split from Massachusetts and enter the union on its own. Unsurprisingly, the document is heavily inspired by the influential Massachusetts Constitution of 1780. Still, it is hardly a carbon copy, as it also draws from the federal Constitution and from several then-recent state constitutions, including Connecticut, Delaware, Indiana, Kentucky, and New Hampshire. 

Though the document has been amended more than 175 times since its ratification, it has never been replaced, at least in part because wholesale change is hard to do: Only the legislature can call a constitutional convention. And although Maine voters can adopt legislation by initiative, they cannot directly amend the constitution that way. The charter may only be changed by convention or by a legislatively passed resolution then endorsed by statewide vote. Indeed, more than once, state officials convened special commissions to study and recommend piecemeal amendments, in significant part to alleviate pressure on the legislature to call a full constitutional convention.

Despite the numerous amendments, Maine’s constitution is easier to navigate than most. The constitution requires the chief justice to “arrange” the constitution periodically — that is, organize it in a coherent way, removing inoperative provisions and reflecting changes made to the text by amendments. That way, amendments are integrated into the document rather than tacked on in an endless list at the end. Until recently, not all of it had to be printed in official copies — in particular, official copies omitted a section taking parts of the Massachusetts law that authorized Maine’s independence and incorporating them into the Maine constitution, including Maine’s promise to take on Massachusetts’ responsibilities toward the Indigenous nations within its borders. Though the provisions remained in force, some argue that the decision to stop printing that section of the constitution was part of the state’s efforts to skirt or minimize the treaty obligations Maine assumed toward those nations.

Robust and Individual Novel Rights

Like more than half of states, Maine constitutionally guarantees certain “natural rights.” That broad language has supported the protection of some unenumerated rights, such as a right to parental custody. Part of what that natural rights clause was initially construed to cover, however, has since been elaborated on or superseded by further constitutional protections, including the 1963 addition of an explicit Equal Protection Clause.

The 1820 constitution contained pointed departures from the Massachusetts model, which flowed both from lessons learned in the intervening 40 years and from Maine’s distinct political environment. The drafters opted for some expanded individual and civil rights, such as broader suffrage rights and a more detailed Declaration of Rights, which featured explicit protection for free speech and especially robust protections for freedom of religion.

Maine’s original Declaration of Rights starkly departed from Massachusetts’s when it came to religious freedom. It protected freedom of religious belief and action, so long as it was peaceful and did not interfere with the rights of others. Unlike in Massachusetts in 1780, it did so without preferring any sect and without permitting compulsory church attendance or other religious action. That provision also prohibits religious tests for office and specifies both that “all persons demeaning themselves peaceably . . . shall be equally under the protection of the laws,” and that “all religious societies in this State . . . shall . . . have the exclusive right of electing their public teachers, and contracting with them for their support and maintenance.”

Some of these religious protections have been read narrowly. The state’s highest court at one time, for example, blessed rules requiring the reading of a Protestant Bible in public schools. Other protections have proved robust, however. Maine’s Free Exercise Clause was once interpreted in line with the then-prevailing standard of the federal First Amendment, under which laws placing a “substantial burden” on the free exercise of religion must survive heightened scrutiny. The state supreme court retained that rigorous interpretation, though, even when the U.S. Supreme Court adopted a less demanding standard in its federal free exercise jurisprudence.

In the 19th century, an attempt to amend the federal Constitution to prohibit direct government aid to religious schools failed. That proposition is commonly referred to as the Blaine Amendment, after James G. Blaine of Maine, a longtime state and federal elected official. Despite Blaine’s provenance and political prominence in Maine, the state is one of the few to never have adopted a state equivalent to that proposed federal amendment.

Maine’s constitution is unusual in that it contains three distinct, explicit equality guarantees. While the first is specific to religious belief, the others are more general. For more than a century, the natural rights clause afforded some of the basic protections that we tend to think of as reflecting rights to equal protection or against governmental discrimination.

In 1963, however, voters added Article I, Section 6-A, which provides that “No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof.” Despite the significant differences in language between the Maine provision and the federal Constitution, the courts have generally treated those equal protection and due process protections as coextensive with those of the federal 14th Amendment.

As initially proposed, this amendment explicitly prohibited discrimination on the basis of “race, religion, sex, or ancestry.” It appears that the specific categories were dropped not so much to broaden the clause as out of concern about the practical implications of explicitly prohibiting sex discrimination — including a particular reference to what might happen if a “qualified young lady” sought admission to Bowdoin College. (Bowdoin admitted its first fully co-ed class in 1971.) In 1988, however, voters approved an amendment making language throughout the constitution gender neutral “in order to clarify that the Constitution applies to all individuals.” As Marshall Tinkle observed in his eminent treatise, that “achievement contrasts with Maine’s generally poor record in the constitutional treatment of women’s issues,” — including the denial of women’s suffrage until the federal 19th Amendment and the defeat of an equal rights amendment in 1984. “Nevertheless,” he continued, “if the state constitution has not played a part in eradicating sexism in Maine, at least Maine has eradicated sexism from the state constitution.”

Maine has not limited its innovations to broad rights to religious freedom and equality. In 2021, voters adopted a first-of-its-kind constitutional “natural, inherent and unalienable right to food.” The provision protects 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,” “as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources” in doing so. Time will tell how powerful this right is as a defense against, for example, land use regulations that might restrict growing crops or keeping certain animals. So far, however, Maine’s highest court has said that while the term “harvest” “unambiguously enshrines a limited constitutional right to hunt” for sustenance, a statutory ban on hunting on Sundays is permissible, as it defines, in part, what constitutes “poaching.”

In 1987, Mainers voted to constitutionalize an explicitly individual right to bear arms, striking the phrase “for the common defense” from the original 1820 language. That “common defense” language had been relied on by courts to suggest that the right was aimed at organized militia-type activity and not, for example, hunting. Until the U.S. Supreme Court’s game-changing 2008 opinion D.C. v. Heller, Maine’s constitution afforded a far more robust protection for a right to bear arms than federal law had provided, though the language has not been construed to be as absolute as the text might suggest.

Governance

Maine’s constitution codifies the separation of powers, dividing government into three “distinct departments”— legislative, executive, and judicial. It also says that no person from any one department “shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.” Given the stridency of that insistence, and the rigor with which the courts seek to enforce it, there are a surprising number and variety of ways in which Maine has “expressly herein directed” hybrid or unconventional allocations of the powers among the branches.

Many states treat the secretary of state, attorney general, and treasurer as exclusively executive positions, whether governor-appointed or separately elected. In Maine, by contrast, the legislature has appointed the secretary and treasurer from the beginning. The attorney general started out as a gubernatorial appointment, subject to the advice and consent of a now-defunct, legislatively selected executive council that advised the governor in his executive duties. Not long after, though, Maine made the unusual choice to have the legislature appoint the attorney general, too. Now all three of those officers are legislatively appointed, each for a term of two years that coincides with the length of the legislative session.

Maine’s constitution created a governorship that is quite powerful — unusually so for 1820. The governor possessed the veto power before many other states’ governors did, and since 1995, has had a qualified ability to line-item veto fiscal items. Still, some of those initial gubernatorial powers have moved or eroded over time, including key appointments. A few appointments even moved away from the governor and then back again.

Maine again departed from the Massachusetts model in apportioning its legislature, choosing representation based on population (at least at the county level) rather than by town or by district wealth and taxes. Thomas Jefferson reviewed the 1820 constitution, pronouncing it “marked with wisdom,” except as to its apportionment scheme, which he presciently noted would need amendment “by & by.” Indeed, it has — repeatedly.

In substance, Maine’s legislature is quite powerful, with its plenary regulatory power and unusual power of appointment of officials, such as the attorney general. Like many states, however, Maine voters opted to put substantial limitations on state finances, especially borrowing, after the fiscal crises of the early and mid-19th century.

The state’s highest court, the Supreme Judicial Court, has two primary roles. First, it is the state’s highest and primary appellate court. When sitting in this capacity, it is known as the Law Court. The second role is as an advisor to the other branches. Under Article VI, Section 3, the justices of the court must “give their opinion upon important questions of law, and upon solemn occasions, when required” by the governor or the legislature. Those opinions are treated as advice from the justices and are not formally precedential opinions of the Law Court, but the opinions have generally been respected by the other branches, even on important, novel, and deeply contentious issues. For example, an 1857 advisory opinion concluding that free Black men had the right to vote rejected the reasoning and application of Dred Scott, the notorious 1857 U.S. Supreme Court case that concluded that “the descendants of Africans who were imported into this country, and sold as slaves” could not be citizens under the federal constitution. (That is not to say, of course, that Maine had fully embraced legal racial equality — shortly before, sitting as the Law Court, the high court had applied “inherited” Massachusetts miscegenation law to invalidate an interracial marriage and disinherit the couple’s children.)

Justices of the court are nominated by the governor. Although initially the constitution mandated a retirement age, now all gubernatorially appointed judicial officers hold their offices for seven-year terms. Maine has shifted over the years between the appointment versus election of some judicial officials, especially local and probate judges who remain outside the unified judicial system. Most, however, are and have been nominated by the governor and confirmed by the senate.

Suffrage, Direct Democracy, and Electoral Innovation

The 1820 constitution granted the right to vote to “every male citizen of the United States” aged 21 and over who had lived in the state for three or more months, “excepting paupers, persons under guardianship, and Indians not taxed.” It was a significant expansion over Massachusetts’s suffrage rights, which were limited to property owners, as well as over the many other states that constitutionally limited the vote to white men.

While Maine’s constitution offered broad suffrage for the time, progress for excluded groups was slow and unsteady. An 1892 amendment, for example, imposed English reading and writing requirements as part of a nativist backlash against the changing demographics of the state. Multiple attempts to extend suffrage to women failed, either at the legislature or the ballot box, until the federal 19th amendment effectively mooted the issue in 1920. Part of that wait may have been the concern that women, if enfranchised, would delay the repeal of Maine’s prohibition amendment. (That amendment was not repealed until 1934.)

Native Americans gained the right to vote (regardless of their tax status) in 1954. Voting restrictions on “paupers” remained until 1965, and the voting age was lowered to 20, then 18, respectively. Residency requirements that had first been lengthened in the 1930s were ultimately dropped in the 1970s. In 2023, Maine voters rejected an amendment that would have eliminated the denial of franchise to “persons under guardianship for reasons of mental illness” — even though that provision has been enjoined for decades as a violation of the federal Constitution. 

Maine is also atypical in what it allows its people to vote on. Maine was early, particularly for an eastern state, in conferring initiative and referendum powers directly on its people. This was a powerful change, though it has been revised, adjusted, and even limited by amendment since. It has not been extended to permit direct voter amendments to the constitution itself.

The state has also repeatedly changed — or tried to change — how it approaches statewide elections. Initially, Maine required candidates for governor, state representative, and state senator to be elected by majority vote. These requirements were changed later in the 19th century — though in the case of the governor, not until after a full-blown constitutional crisis.

In 1878, no gubernatorial candidate received an outright majority of votes. So, as the constitution provided, the legislature chose the victor — opting for the third-place candidate. The next year’s election appeared to hand the legislature to the opposing party. Rather than go quietly, that new governor and his legislative allies claimed election fraud and declared the opposing party’s candidates disqualified. The fight devolved into calls for an insurrection, the ignoring of an advisory opinion from the justices of the high court, two competing legislative convenings, and an eventual plea to Civil War hero Joshua Lawrence Chamberlain to help avert violence. The matter was resolved following a second advisory opinion from the justices, which this time was heeded. Voters changed the constitution to elect the governor by plurality shortly thereafter.

Those plurality-vote changes became important again in the 20th century, when Maine voters repeatedly adopted laws by initiative to implement ranked-choice voting for important statewide and federal officials. In an advisory opinion, the justices of the Supreme Judicial Court concluded that ranked-choice voting could not be used in elections for governor, state representative, or state senator specifically because the constitution required them to be selected by plurality rather than majority vote. Accordingly, Maine uses ranked-choice voting in all state-level primaries, but in the general elections only for federal offices.

Local Governments

The 1820 constitution was quiet on state-local relations. That quickly changed, with early amendments that, for example, limited municipalities’ ability to take on debt. Constitutionalized home rule protections — which create a limited degree of local autonomy in self-governance — did not arrive until 1969 and were later elaborated by amendments relating to taxation, finance, and unfunded state mandates. Even now, the broadest home rule protections come from statute, not the constitution.

Constitutional Interpretation

Maine did not wait for Justice William Brennan’s well-known exhortation on the importance of state constitutional rights before concluding that its state constitution could offer more protection than the federal constitution in some cases. Indeed, the Supreme Judicial Court has repeatedly explained that it takes a primacy approach to constitutional interpretation — that is, it should look first to the Maine Constitution and whatever protections it affords before answering perhaps unnecessary questions of federal constitutional law.

In some areas, particularly criminal procedural rights, that Court has interpreted Maine law as more protective than the federal Constitution. Maine imposes a stricter standard to protect the privilege against self-incrimination, for example. The Court has also found a right to counsel in criminal cases that is broader than the federal standard, though the state’s parallel right to counsel in civil cases has not received nearly as robust an interpretation. In general, however, as numerous commentators, including one current high court justice, have observed, adherence to the state-primacy approach overall is patchy at best. Many provisions of the state constitution — including the promises of due process, equal protection, and free speech — are treated as coextensive with their federal counterparts, even where the language differs significantly.

• • •

Maine’s constitution is one of the oldest in the country that is still in use. It is pragmatic and often frustratingly slow to change, with flashes of surprising ambition and innovation. Like the people who have built and tested it, it is stubbornly itself.

Kaitlin Caruso is an associate professor of law at the University of Maine School of Law.

Suggested Citation: Kaitlin Caruso, The Maine Constitution: Like the State’s Population, Stubbornly Itself, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 8, 2026), https://statecourtreport.org/our-work/analysis-opinion/maine-constitution-states-population-stubbornly-itself