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Coastal Maine Botanical Gardens Inc VS the Maine Constitution

The dispute between Coastal Maine Botanical Gardens INC  and the Town of Boothbay entered a new chapter as 2017 came to an end. Lawyers for CMBG filed a lawsuit on Dec. 20 in U.S. District Court in Portland, claiming the Town of Boothbay denied CMBG its constitutional right to due process.

The Coastal Gardens Inc thereby places the dispute in a constitutional context, which is where it needs to be, but for other reasons than those for which the Garden's lawyers have filed suit.  I submit, as a citizen of Maine, that if the Maine Constitution is honored, the town ordinances cannot give special treatment to one type of organization over another, based on whether the developer is codified as an educational facility, a museum, a big box store, or whatever.

The premise of my argument is found in the preamble of the Maine Constitutions which articulates the objects of government, one of which is to "promote our common welfare".

The adjective "common", as used in the Maine Constitution is arguably intended to mean, within constitutional context, shared in common by all of the people of Maine. Compare the difference in language between similar paragraphs in the Maine Constitution and the US Constitution:
(Arranged by the Chief Justice of the Maine Supreme Judicial Court
and approved by the Maine State Legislature, Resolve 2013, chapter 75,
pursuant to the Constitution of Maine, Article X, Section 6)
PREAMBLE.Objects of government.  We the people of Maine, in order to establish justice, insure tranquility, provide for our mutual defense, promote our common welfare, and secure to ourselves and our posterity the blessings of liberty, acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe in affording us an opportunity, so favorable to the design; and, imploring God's aid and direction in its accomplishment, do agree to form ourselves into a free and independent State, by the style and title of the State of Maine and do ordain and establish the following Constitution for the government of the same
Preamble United States Constitution:We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The phrases “common good” and “general welfare” and are similar sounding phrases which have  caused much debate over how they are to be interpreted.  In the United States Constitution, the adjective “common” is applied to defense, while the adjective “general” is applied to welfare. The phrase “common good” is not used, but has been used abundantly in discussions of the meaning of the phrase “general welfare” It is reasonable to suppose that the founders of the US Constitution included the phrase "general welfare" with "common defense" to mean general in the sense of other benefits, in addition to national defense, which are shared in common by all of the people, such as protecting the water supply from contamination.

The use of the term “common good” is derived from the conflation of the terms “common defense” and “general welfare”. It was introduced when the Maine Constitution came into being in 1820, replacing the dual terms "common defense" and "general welfare". By the time the Maine Constitution was ratified, there was ample time for there to have been much debate over how the term "general welfare" is to be interpreted, with an alternate interpretation to the one I have cited, being one which mirrors the way that the term "public benefit" is used today to signify a benefit to special factions of the public rather than a benefit which is shared in common by all of the people. In conflating the two terms used in the US Constitution- "common defense" and "general welfare" to the single term "common good" , the Maine Constitution clarifies that it is the object of government to serve the interest which all of the people share in common.

In 1876 Article IV Part Third Sections 13 and 14 were added to the Maine Constitution. Governor Seldon Conner had just taken office. His inaugural address railed passionately against special interests and abuses of governmental powers which Article IV Part Third Sections 13 and 14 of the Maine Constitution were intended to cure.
Maine Constitution
Article IV.
Part Third.
Legislative Power
Section 13. Special legislation. The Legislature shall, from time to time, provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation.
Section 14. Corporations, formed under general laws. Corporations shall be formed under general laws, and shall not be created by special Acts of the Legislature, except for municipal purposes, and in cases where the objects of the corporation cannot otherwise be attained; and, however formed, they shall forever be subject to the general laws of the State.

These days I find examples of historical revisionism taking place abundantly throughout our common political dialogue, one example is Ballotpedia's list of Maine Amendments. Although the Maine Constitution was ratified in 1820, Ballotpedia's list of Maine's Amendments begins in 1910, as if to say there were no amendments to the Maine Constitution in the 90 years previous and eliminating Article IV Part Third Sections 13 and 14 from the list. I have submitted a complaint to Ballotpedia and ask that my readers do the same as more voices give more power to the re-institution of our real Constitution and the fundamenal importance of Article IV Part Third Section 13 & 14 which if honored would protect Maine against the current transformation from our constitutional form of government into a corporate state which was institutionalized in the mid-seventies under Governor Longley.

The founders of the United States Constitution wrote a great deal about the problem of fairness and factions. The solution was a system designed with internal checks against tyranny and totalitarianism. In that context, the term “general” takes on the meaning of “that which is common to all factions- or individuals”. National defense is such a common good and so the term “common” has been used in the Constitution as a qualifier of defense.  All the colonies benefited by the Union of the States in shared defense, making national defense a matter of “common welfare”.

The welfare of Maine's water supply is indisputably a matter of common welfare. Everyone commonly shares the need for water. There is no argument to contest this fact.

Today the terms “common good” and “general welfare” are often replaced with “public benefit”, a term which removes the reference to something commonly shared and replaces it with the concept of something which is “public”. “Public” is related to the terms “common” and “general” but does not require that all factions share in the benefit. A public benefit need not be a common good but a common good is always a public benefit. A common good leaves much less to interpretation than does public benefit. Public roads are a common good because one way or another everyone benefits by public roads even those who never drive on public roads, receive mail and goods that have been delivered on a public road. Job creation by the government is declared to be a public benefit but it is a benefit for some while its cost is a only a burden for others and in some cases can affect one person's economy adversely while tax-payer subsidizing that of a special faction.

In Article IV Part Third Section 14 of the Maine Constitution it is stated that all corporations, however formed are subject to general laws. If the purpose of a Constitution is to establish the basis for a rule of law, it follows that general laws should be consistent with the purpose of government established by the Constitution. Rhetorically, there is no argument in Maine, at either the state or municipal government levels, that the protection of our water is a primary purpose of government. In this blog, I have frequently quoted sections of  Maine statutory law and Town Reports expressing this ideal. Based on governmental rhetoric, there should be no debate that there should be general laws protecting our watershed which apply to all in common, making no exception for reasons having nothing to do with environmental welfare. All in common should be governed by one set of general laws written first by the State and expanded upon at the local governmental level. All should be governed by the principal laid out in our State Constitution that the purpose of government is to promote the common welfare, an idea which is diametrically distinct from special interests, if we are still a state governed by it's Constitution.

While the "economic development benefits used in arguments by Coastal Gardens Inc and supporters may benefit some, those benefits cannot be said to serve the "common welfare" and have only a potentially detrimental impact on the protection of our watershed. Yet, in defending its position, Coastal Maine Botanical Gardens Inc, cannot help but assert that it is a great boon for our economy implying that there is a choice to be made between alleged benefits to the economy and known impacts on the well being of our watershed. This choice is codified in the town ordinances by making a distinction between an educational institution and a museum. As such the town ordinances violate the Maine Constitution. Our current statutory laws also violate the Maine Constitution but that does not justify the town doing the same. The Maine Constitution is the ultimate rule of law if we are still to regard ourselves as a state as opposed to a corporation. The Maine Constitution is based on the United States Constitution, which is founded on principals of individual liberty, which extends to the importance of local government and limitations placed on the federal government restricting its powers to those enumerated in the Constitution. In Maine the enumerated power of our State Constitution is to promote the common good.

As I have been writing about for years on this blog, the Maine Constitutional government was transformed from within in the mid-seventies, Under the administration of Governor Longley. Without firing a shot,as they say, a board was created, composed exclusively of  the heads of Maine's largest and wealthiest businesses whom were invited to "lead the Legislature" and thus government by a public-private hegemony was instituted in Maine, to be further entrenched by every administration since. That new form of government codifies laws written specifically for public-private relationships, protecting trade secrets over the  public's right to know about toxins used in public-private projects, a clear violation of our constitutional purpose of government. If we are still a state governed by our Constitution, there should be instead a general law, governing all, in the interest of protecting our watershed, a good shared by all in common.

In that case CMBG Inc would be governed by a general law protecting the watersheds of Maine and distinctions between educational facilities and museums would have nothing to do with it.


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