by Josh Eboch
Much like last year’s health insurance bill,รย the recently passedรย Food Safety and Modernization Act (or “Food Patriot Act”),รย is unconstitutional for one simple reason:รย the federal government lacks the authority to regulateรย economic activities that do not cross state lines.รย
But try explaining that to the Food and Drug Administration, which, in concert with the Department of Homeland Security, will nowรย have greatly expanded power to smother small farmers and local food producers inรย bureaucracy and red tape.รย
Notรย to mentionรย the ability toรย enforce disturbingly authoritarianรย 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 (madeรย by the FDA in response to a recent lawsuit) is diametrically opposed to the ideas of individual liberty on which America was founded, and isรย clearly contradictedรย 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 hasรย opined on numerous occasions that there areรย no constitutionalรย limits on federalรย power to regulateรย every aspect of American life under the guise of regulating commerce, state lines and sovereigntyรย notwithstanding. And they’re the ones who interpret what the Constitution means, right?
Ironically,รย the very premise thatรย theรย highest court in the landรย should have such aรย unilateral final say in questions of constitutionality is based onรย bad precedent.รย Chief Justice Johnรย Marshall simplyรย fabricated the interpretiveรย authority of “judicial review”รย in 1803, and flawedรย logicรย and legislation, invariably tending toward absolutism,รย hasรย been heaped atopรย ever since.
But misreading the Constitution, or perverting it for political gain, does not change the legal force of the original document.รย To paraphrase Austrian economist Peter Schiff, the Constitution doesn’t need to be interpreted;รย it’s notรย written in Chinese. It justรย needs to be followed.
If federal lawmakers and their alphabet agencies refuse toรย obey the veryรย document on which theirรย political authority andรย legitimacy is based, then it is up to state and localรย governments toรย pass and enforceรย laws like the Intrastate Commerce Actรย (ICA),รย which explicitlyรย remind the feds where their authority ends.
So far in 2011, legislation has been introduced in Arizona (SB1178), New Hampshire (HB324) and Virginiaรย (HB1438) thatรย 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 proposedรย lawรย would even go so far as to make it a felony for any agent of the federal government to attempt to enforce unconstitutionalรย regulations in the state.
Thanks to the tireless work of the Virginia Campaign for Liberty, a version of theรย ICA has passed the state’sรย House of Delegates by a wide marginรย two years in a row. But that’s not nearly good enough. Successรย in theรย Virginia Senateรย will requireรย a groundswell of public outrage similar to that which helped get theรย Health Care Freedom Actรย passed last year inรย seven states.
Absentรย passage of the ICA or similar legislation, there will be nothing to stopรย the FDAรย from using the Food Patriot Act to drive family farms across the country out of business; killing jobs inรย the growing industry ofรย local organic food production,รย without improving safety at all.
Evenรย if activists doรย succeed in properly defining interstate commerce, the federal government already operatesรย with such blatantรย disregard forรย its own laws thatรย it’s clear the question ofรย stateรย vs. federal powerรย willรย ultimately have toรย be decided in the only court that matters anyway: public opinion.
As the people of the Middle East are reminding America,รย when theรย governed actively withdraw their consent, even the most repressive dictatorsรย are renderedรย powerless.
The days of relying on the wisdom of black-robed deities in Washington, D.C.รย are longรย past. Those gods have failed us. We the People,รย through our state and localรย governments, are all that stands now between a power-mad federal tyranny and the future ofรย liberty in our constitutional republic.รย And time is running out.
- The Statist and the Straw Man: Answering Attacks on Tenthers - February 20, 2011
- Stopping the Federal Food Police at your State Line - February 9, 2011
- Resistance Is NOT Futile: Forgotten Lessons from the Nullification Crisis - January 8, 2010