So I saw this link earlier today, and was a bit skeptical. Wouldn’t you be? Come on. “Jackboot to the throat?” Really? Are we back to “jackbooted thugs” again? Then the next part: “FDA claims citizens have no right of access to certain foods.” That certainly made me sit up and think. It’s an interesting claim. Let’s see what there is to it.
I get very cautious when I’m reading something where “Fascism” pops up. I can’t help it; my skepticism meter pegs out. But the topic had my interest. I occasionally follow the raw milk issue. My wife and I discussed the idea briefly several years ago, and decided against it, primarily because we didn’t think we could afford it. At the time, I don’t think there were any cow-shares near us.
At any rate, I understand the basic idea, which is that there’s a decently-sized group of people who believe that raw milk is better for a person than pasteurized or processed milk is. They just don’t like that there only choice these days is what they consider adulterated milk. They want the real thing. On the other side of the issue are government agencies doing what they do best: regulating. Most people on this side of the issue claim that pasteurized milk is safer for people, since the pasteurization process is designed to reduce the number of viable pathogens that cause diseases like diphtheria, strep throat, scarlet fever, and typhoid fever, among others. The typical method, known as High Temperature Short Time, also kills off almost all yeasts, molds, and bacteria that cause spoilage.
I perused the linked article, which discusses a lawsuit filed by the Farm-to-Consumer Legal Defense Fund against the US Food & Drug Administration. The FDA has banned the interstate sale of raw milk; the FTCLDF wants to get that ban lifted. The Tenth Amendment Center (motto: “Concordia res parvae crescent” or “Work Together To Accomplish More”) discusses the lawsuit in this post using appropriately alarmist phrases: “No Natural Right;” “health freedom;” “secret agenda;” and “Big Dairy.” But TAC also links to the FDA dismissal motion, and that’s the most interesting part.
I am not a lawyer. I don’t even play one on TV. I can basically understand what’s written in the brief though, and can research what I don’t understand. That said, what I read on starting on page 25 of the brief is truly unsettling.
I’ve always understood the Constitution to tell the government what it’s allowed to do. That’s why there’s all that stuff about the President, Senators and Representatives, and so on. It doesn’t tell citizens what they’re allowed to do; it’s a manual for how the government is to be put together and run. That’s why there’s not a list of what we citizens are allowed to do. In fact, the 9th and 10th amendments cover that part pretty clearly:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That means that even though a right might not be listed in the Constitution, that right still exists.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That seems to be pretty clear. The federal government can only do what the Constitution says it can do. Everything else falls under the purview of the States or the citizens.
We won’t discuss right now how badly the 10th amendment has been shredded.
So back to the motion. As I said, there are several statements made towards the end that truly concern me. For example, “There is No Absolute Right to Consume or Feed Children Any Particular Food.” They follow that with “There is No Generalized Right to Bodily and Physical Health,” which is particularly interesting in light of the Healthcare Reform Bill that was recently shoved down our collective throats.
But what destroyed my irony meter was the claim by the United States that there is no “absolute right to consume or feed children any particular food.” How do they reach that conclusion?
But there is no “deeply rooted” historical tradition of unfettered access to food of all kinds. See Glucksberg, 521 U.S. at 721. To the contrary, society’s long history of food regulation stretches back to the dietary laws of biblical times. See Peter Barton Hutt & Peter Barton Hutt II, A History of Gov’t Regulation of Adulteration & Misbranding of Food, 39 Food, Drug & Cosmetic Law J. 2, 3 (1984) (citing Leviticus 11, 17 and 19, and Deuteronomy 14). (Emphasis added)
Yes, United States Attorney Stephanie M. Rose, via Trial Attorney Roger Gural just invoked the dietary restrictions God gave Moses as justification for governmental regulation of milk. Oh, the Ten Commandments, too.
Cue the wailing and gnashing of teeth by the Freedom From Religion Foundation. I’m certain. Richard Dawkins may well blow a gasket. They have to fight this, don’t they? To let this obvious religious assault on our government pass would be hypocritical, wouldn’t it?