A Constitutional Food Fight Could Lie Ahead

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

One of the little-noticed things that happened on election day is that voters in Maine ratified the nation’s first state constitutional amendment enshrining a “right to food.” It puts the hay — so to speak — down where us mules can get to it. It declares “that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health, and well-being.”

That might seem anodyne. The news we see, though, is the that it could someday ignite a constitutional food fight with the U.S. government. That’s because in one of the most famous decisions of the Supreme Court, the justices declared — unanimously — that the United States Constitution’s commerce clause grants the Congress power to prohibit a farmer from growing food on his own land for his own use.

That case arose from Ohio. It was levied by a farmer named Roscoe Filburn. He grew wheat in excess of the quotas allowed him by the Agricultural Adjustment Act. That law was passed by Congress in 1933, as part of President Roosevelt’s New Deal. The idea was to support prices for crops. It even used taxpayers’ money to pay farmers not to plant. The government used it to jump on Filburn for planting more than his quota.

The government insisted that it had the power to regulate what Filburn could grow on his own land. It cited the part of the Constitution known as the commerce clause. It appears in Article 1, Section 8, where the government gets most of its powers. The commerce clause empowers Congress to regulate commerce among the several states. It has been called the most important non-military power the government has.

Filburn, a mere mortal, tried to protest that the wheat he had grown over the quota was for his personal consumption and use on his own farm. Because it wasn’t going to be sold to anyone, anywhere, and would remain in Ohio, if not Filburn’s personal stomach, it was beyond the reach of Congress, even with the commerce clause. The Supreme Court, in a decision written up by Justice Robert Jackson, told Filburn to take a hike.

It might well be, Jackson wrote, that Roscoe Filburn’s wheat was never marketed. Nonetheless, “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.” Even the New York Times editorialized that “under this interpretation it is difficult to see how any economic activity can escape Government regulation.”

Which brings us back to today and the amendment voters just ratified in respect of Maine’s constitution. It says that “all” individuals have a “natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being. . .”

Individuals have that right, Maine says, “as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food.” Maine seeks to establish that through what we like to call a “positive right,” meaning it comes from Maine’s government. That is a contrast to the way most rights are secured in the federal constitution.

The way that parchment secures our rights is not by doling out the rights itself but by prohibiting Congress from passing any laws interfering with rights deemed having been given by God. This approach is sometimes called “negative rights.” In any event, Maine’s constitution now conflicts with the American constitution as enshrined in a unanimous — super- — precedent of the Supreme Court marked in Wickard v. Filburn.

Hence this alert to a clash down the road and we look forward to it. Wickard v. Filburn, after all, is one of the underpinnings of big government rule in America. Not that it’s uncomplicated. Maine’s “right to food” amendment was launched in the state legislature with bipartisan support, including by many who want to block the government from meddling in their lives. Yet we also note that food is one of the “rights” being hawked by the United Nations.

That can’t be good. The UN has even established a UN Special Rapporteur on the Right to Food. We kid you not. We lack for the clairvoyance to see how this conflict might be joined. It’s not hard to imagine, though, that at some point a case is going to arrive in which federal do-gooders are going to try to regulate growers in Maine and a Maine farmer will try to shelter under the new provision of the state constitution. Americans might have to choose among the New Deal, Maine, and the United Nations.

________

Drawing by Elliott Banfield, courtesy of the artist. The editorial was revised from the Bulldog edition to emphasize the bipartisan nature of the support for the state constitutional amendment when it was first launched in the legislature.


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