Stopping the Federal Food Police at your State Line

by Josh Eboch

Much like last year’s health insurance bill, the recently passed Food Safety and Modernization Act (or “Food Patriot Act”), is unconstitutional for one simple reason: the federal government lacks the authority to regulate economic activities that do not cross state lines. 

But try explaining that to the Food and Drug Administration, which, in concert with the Department of Homeland Security, will now have greatly expanded power to smother small farmers and local food producers in bureaucracy and red tape. 

Not to mention the ability to enforce disturbingly authoritarian doctrines on the American people such as:

“There is no absolute right to consume or feed children any particular food.”

“There is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds.”

“Plaintiffs’ assertion of a ‘fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families’ is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.”

“There is no fundamental right to freedom of contract.”

Every single one of the above arguments (made by the FDA in response to a recent lawsuit) is diametrically opposed to the ideas of individual liberty on which America was founded, and is clearly contradicted by the Ninth Amendment to the U.S. Constitution, which states:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Yet, perhaps the FDA is not solely to blame for the logical disconnect between a federal agency’s legal argumentation and the foundation of federal law.

After all, the Supreme Court itself has opined on numerous occasions that there are no constitutional limits on federal power to regulate every aspect of American life under the guise of regulating commerce, state lines and sovereignty notwithstanding. And they’re the ones who interpret what the Constitution means, right?

Ironically, the very premise that the highest court in the land should have such a unilateral final say in questions of constitutionality is based on bad precedent. Chief Justice John Marshall simply fabricated the interpretive authority of “judicial review” in 1803, and flawed logic and legislation, invariably tending toward absolutism, has been heaped atop ever since.

But misreading the Constitution, or perverting it for political gain, does not change the legal force of the original document. To paraphrase Austrian economist Peter Schiff, the Constitution doesn’t need to be interpreted; it’s not written in Chinese. It just needs to be followed.

If federal lawmakers and their alphabet agencies refuse to obey the very document on which their political authority and legitimacy is based, then it is up to state and local governments to pass and enforce laws like the Intrastate Commerce Act (ICA), which explicitly remind the feds where their authority ends.

So far in 2011, legislation has been introduced in Arizona (SB1178), New Hampshire (HB324) and Virginia (HB1438) that defines intrastate commerce as anything produced, mined or grown and used within a given state’s boundaries. Such economic transactions are, by definition, not subject to federal regulation of interstate commerce.

New Hampshire’s proposed law would even go so far as to make it a felony for any agent of the federal government to attempt to enforce unconstitutional regulations in the state.

Thanks to the tireless work of the Virginia Campaign for Liberty, a version of the ICA has passed the state’s House of Delegates by a wide margin two years in a row. But that’s not nearly good enough. Success in the Virginia Senate will require a groundswell of public outrage similar to that which helped get the Health Care Freedom Act passed last year in seven states.

Absent passage of the ICA or similar legislation, there will be nothing to stop the FDA from using the Food Patriot Act to drive family farms across the country out of business; killing jobs in the growing industry of local organic food production, without improving safety at all.

Even if activists do succeed in properly defining interstate commerce, the federal government already operates with such blatant disregard for its own laws that it’s clear the question of state vs. federal power will ultimately have to be decided in the only court that matters anyway: public opinion.

As the people of the Middle East are reminding America, when the governed actively withdraw their consent, even the most repressive dictators are rendered powerless.

The days of relying on the wisdom of black-robed deities in Washington, D.C. are long past. Those gods have failed us. We the People, through our state and local governments, are all that stands now between a power-mad federal tyranny and the future of liberty in our constitutional republic. And time is running out.