While I wrote this, I do want to give credit to Evren Seven, a lawyer, who provided some information for this post.
“no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;”
“no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;”
“no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice”
These are the words of Wisconsin Judge Patrick J. Fiedler in his clarification of his ruling against the Zinnikers who were running a herdshare and ordered to stop because the state claimed it violated law.
Do you think you have the fundamental right to produce and consume the foods of your own choice? This isn’t the first time this has been said. The FDA said almost the exact same thing not that long ago.
“There is no absolute right to consume or feed children any particular food.” [p. 25]
Unfortunately they are right. Technically the Constitution doesn’t say that you have a fundamental right to eat what you want. However, the FDA doesn’t care much about the Constitution when they stated “(observing that “it is within HHS’s [United States Department of Health and Human Services] authority . . . to institute an intrastate ban as well”).” thus trampling over the 10th amendment.
This doesn’t affect just those of us that choose to drink raw milk. It can have a much further reach than that so it’s important that even if you don’t drink raw milk that we take a stand against the outright ban of it.
Have you ever heard of Wickard v. Filburn? Chances are you haven’t, but it has the potential of affecting all of us that grow and raise our own food.
The quick and dirty story is that in 1938 the Federal government set quotas on the amount of wheat put into interstate commerce to try and stabilize the price. Roscoe Filburn, a farmer, grew wheat for commercial and also for personal use. Unfortunately, combined the amount was over the quota so he was fined. He refused to pay the fine and was taken to court, eventually ending up in the Supreme Court. The ruling, based on the Commerce Clause*, stated that the Federal government, can indeed, regulate what is grown for personal use and not put into commerce and it it can also regulate intrastate commerce because it can indirectly effect interstate commerce. It is important to note, however, that Wickard never dealt with whether or not growing food for your own consumption (or being able to obtain whatever food you see fit) is a “fundamental right,” since the statute wasn’t a total ban but rather a maximum production limit that far exceeded what a family might require. Should the Supreme Court decide that growing one’s own food is a “fundamental right,” it becomes extremely difficult for a state to regulate it. Once you get “fundamental right” status, Congress or a state legislature would have to show that it is “necessary to achieve a compelling government interest” to regulate raw milk production for one’s own use (or purchasing), and that’s never happened.** Given today’s business friendly SCOTUS, it’s essentially guaranteed that such a case, should it get there, would not get that protected status.
Personal use affects interstate commerce because if you can produce it you don’t buy it, thus reducing the demand. One person doing it is trivial, but when a lot of us are producing our own food it can have a huge impact on interstate commerce.
We better be careful because us vegetable gardeners may be the next ones with targets on our backs.
*The Commerce Clause was also used against California’s Medical Marijuana legalization because it said that making it legal in California effected the prices in other states. Nevermind that it’s illegal in other states though.
**OK it happened once regarding Japanese internment but the Court later admitted it was wrong.