by Josh Eboch
Much like last year’s health insurance bill,Â the recently passedÂ Food Safety and Modernization Act (or “Food Patriot Act”),Â is unconstitutional for one simple reason:Â the federal government lacks the authority to regulateÂ economic activities that do not cross state lines.Â
But try explaining that to the Food and Drug Administration, which, in concert with the Department of Homeland Security, will nowÂ have greatly expanded power to smother small farmers and local food producers inÂ bureaucracy and red tape.Â
NotÂ to mentionÂ the ability toÂ enforce disturbingly authoritarianÂ 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 (madeÂ by the FDA in response to a recent lawsuit) is diametrically opposed to the ideas of individual liberty on which America was founded, and isÂ clearly contradictedÂ 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 hasÂ opined on numerous occasions that there areÂ no constitutionalÂ limits on federalÂ power to regulateÂ every aspect of American life under the guise of regulating commerce, state lines and sovereigntyÂ notwithstanding. And they’re the ones who interpret what the Constitution means, right?
Ironically,Â the very premise thatÂ theÂ highest court in the landÂ should have such aÂ unilateral final say in questions of constitutionality is based onÂ bad precedent.Â Chief Justice JohnÂ Marshall simplyÂ fabricated the interpretiveÂ authority of “judicial review”Â in 1803, and flawedÂ logicÂ and legislation, invariably tending toward absolutism,Â hasÂ been heaped atopÂ ever since.
But misreading the Constitution, or perverting it for political gain, does not change the legal force of the original document.Â To paraphrase Austrian economist Peter Schiff, the Constitution doesn’t need to be interpreted;Â it’s notÂ written in Chinese. It justÂ needs to be followed.
If federal lawmakers and their alphabet agencies refuse toÂ obey the veryÂ document on which theirÂ political authority andÂ legitimacy is based, then it is up to state and localÂ governments toÂ pass and enforceÂ laws like the Intrastate Commerce ActÂ (ICA),Â which explicitlyÂ remind the feds where their authority ends.
So far in 2011, legislation has been introduced in Arizona (SB1178), New Hampshire (HB324) and VirginiaÂ (HB1438) thatÂ 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 proposedÂ lawÂ would even go so far as to make it a felony for any agent of the federal government to attempt to enforce unconstitutionalÂ regulations in the state.
Thanks to the tireless work of the Virginia Campaign for Liberty, a version of theÂ ICA has passed the state’sÂ House of Delegates by a wide marginÂ two years in a row. But that’s not nearly good enough. SuccessÂ in theÂ Virginia SenateÂ will requireÂ a groundswell of public outrage similar to that which helped get theÂ Health Care Freedom ActÂ passed last year inÂ seven states.
AbsentÂ passage of the ICA or similar legislation, there will be nothing to stopÂ the FDAÂ from using the Food Patriot Act to drive family farms across the country out of business; killing jobs inÂ the growing industry ofÂ local organic food production,Â without improving safety at all.
EvenÂ if activists doÂ succeed in properly defining interstate commerce, the federal government already operatesÂ with such blatantÂ disregard forÂ its own laws thatÂ it’s clear the question ofÂ stateÂ vs. federal powerÂ willÂ ultimately have toÂ be decided in the only court that matters anyway: public opinion.
As the people of the Middle East are reminding America,Â when theÂ governed actively withdraw their consent, even the most repressive dictatorsÂ are renderedÂ powerless.
The days of relying on the wisdom of black-robed deities in Washington, D.C.Â are longÂ past. Those gods have failed us. We the People,Â through our state and localÂ governments, are all that stands now between a power-mad federal tyranny and the future ofÂ liberty in our constitutional republic.Â And time is running out.
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