Rethinking Maine’s Constitution

By Matthew Gagnon

Sometimes, even bad ideas are good.

I found myself thinking that earlier this week when I learned of a bill sponsored by state Sen. Craig Hickman that seeks to rethink Maine’s Constitution. LD 1824 is a resolution that would establish a commission that would study the Maine Constitution and make recommendations for changes to it. 

The heart of what Hickman is proposing has merit. Constitutions are not inherently perfect or infallible, and I’ve always believed that those governed should at the very least reconsider and reconfirm the ideas of their supreme document every once and a while. Thomas Jefferson, who may have helped write part of the Maine Constitution, believed that political revolutions should be reasonably frequent so as to ensure that a people governed truly consent to the structure of that governance.

Speaking of Jefferson and his involvement, he was not fond of parts of the early construction of the document, particularly the sections regarding the share of representation afforded to large population centers versus smaller towns. 

Constitutions are important and useful, in that they provide firm and difficult-to-change rules. Statutes passed by legislatures are important, but can be quickly changed and are always subjected to the whims of partisan politics and the fickle opinions of the electorate. Constitutions, by contrast, keep society stable and give expectations for how things are to be done, guaranteeing a rule of law we all have to abide by. 

But we don’t necessarily have to be stuck with those rules forever. We should periodically think about how we do things, and occasionally even change them. 

The danger is in how we do it. When we seek to make those changes through interpretive, activist judicial rulings — something we have seen far too often out of both left and right in recent decades — we ultimately make constitutions meaningless. That’s why the notion of a “living, breathing document” is such a dangerous idea. 

Yes, it may temporarily give you what you want, and achieve a political end, but If we constantly revise our interpretation of the supreme document to fit our trendy worldview, we turn the Constitution into little more than an easily changeable law. Now it is free to be ignored when it becomes inconvenient or reinterpreted to say something it was never meant to say. By making the document so malleable, we also hand our political opponents the very same authority to change things that we ourselves may have used before, which they absolutely will do. Sauce for the goose. 

If that is the society we want — one without firm rules — we may as well not even have a constitution. There are countries, like the United Kingdom, that get by just fine without a written constitution.

But that isn’t our society today. Maine is governed by a constitution, and Hickman’s commission would consider changes. Some of them are good, like the proposal to create a lieutenant governor or the popular election of constitutional officers. Some of them are bad, like cutting the size of the Legislature. Others I’m indifferent about, like creating a unicameral legislature. 

In the end, the proposal is not bad because of its goal, but its implementation. Hickman’s bill would create a 13-member commission of “scholars,” judges, legislators, the secretary of state and several special interest groups. The lineup of decision-makers reads to me like a who’s who of perennial insiders, conventional thinkers and activists, none of whom I want anywhere near decisions of this much substance. 

It is also flawed in that it is limited to nine specific ideas. If we are going to do it, let’s do it for real. There are other ideas I’d like to see discussed. 

I would love to think radically and make the House and Senate truly different. We could encourage a multi-party democracy by making the House follow rules of proportional representation of parties as is done in much of Europe, while preserving the Senate as a large district, winner-take-all election with terms of four or six years.

I’d also like a dialogue on the executive powers we grant to governors and whether we should place restrictions on those powers in the Constitution. I think we need to settle the question as to what electoral system Maine will use. We could also debate firm and serious term limits.

There is no shortage of ideas, but we’ll never get to where we should be by relying on a commission of our betters to do it for us. These changes, if we are to do any of them, need to come from us — the people of Maine. 

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.