Right to Food: Massie Proposes Constitutional Amendment

Pete Kennedy, Esq.
April 11, 2024

On March 18 and again on April 6 Representative Thomas Massie (R-KY) posted a proposed amendment to the U.S. Constitution on Twitter. The amendment states, “The right of the people to grow food and to purchase food from the source of their choice shall not be infringed and Congress shall make no law regulating the production and distribution of food products which do not cross state lines.” [Twitter]

A number of those response responding to the proposed “right to food” amendment on Twitter commented that this should already be protected under the Constitution. The right to grow your own food and purchase food could be protected under the Fifth Amendment’s substantive due process clause (i.e., “no person shall be…deprived of life, liberty or property without due process of law”), or the Ninth Amendment (i.e., “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”), but no court has expressly held that these rights are protected by either amendment.

Beyond the right to grow food and purchase food from the source of choice, the proposed amendment would overturn one of the worst decisions in U.S. Supreme Court history, Wickard v. Filburn [317 US. III (1942)], substantially reducing Congress’ power to regulate food under the commerce clause. The case involved a challenge to the 1938 Agricultural Adjustment Act (AAA), which gave the Secretary of Agriculture the power to set compulsory marketing quotas for wheat. According to the Supreme Court, the purpose of the act “as related to Agriculture is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce.” [p. 113]

Under the act, “marketing” not only included sales; it also included wheat for “…feeding poultry or livestock, or the products of which, are sold, bartered, or exchanged or to be so disposed of.” [p. 118] The Secretary of Agriculture had the power under the AAA to fine farmers who exceeded their quota.

Roscoe Filburn owned and operated a small farm in Montgomery, Ohio. Filburn mainly produced and sold milk, poultry and eggs. It was his practice “to raise a small acreage of winter wheat, sown in the fall and harvested in the following July; to sell a portion of the crop; to feed poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption and to keep the rest for the following seeding.” [p. 113] The court record in the case did not have the exact breakdown of how he disposed of his crop.

Under the AAA market quotas, Filburn’s acreage allotment for 1941 was 11.1 acres and, a “normal yield” of 20.1 bushels of wheat an acre. “He sowed, however, 23 acres and harvested from his 11.9 acres of excess acreage, 239 bushels, which under the terms of the Act…constituted farm marketing excess, subject to a penalty of 49 cents a bushel or $117.11 in all.” [p. 113]

Filburn filed a complaint against the U.S. Secretary of Agriculture, three members of the County Agricultural Conservation Committee for Montgomery, Ohio, and a member of the State Agricultural Conservation Committee for Ohio, seeking to enjoin enforcement against himself of the penalty imposed by the AAA for marketing in excess of the market quota set for his farm. He also sought a declaratory judgment that the wheat quota was unconstitutional under both the commerce clause and the substantive due process clause of the Fifth Amendment.

The Supreme Court ruled against Filburn, upholding a micromanaging law that effectively characterized feeding your own farm animals as interstate commerce. In its decision, the court found, ”The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs that the appellee’s [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated is far from trivial.” [p. 125]

The Wickard v. Filburn decision has been a springboard to a tremendous expansion of federal power through the commerce clause vis-à-vis states’ rights and individual liberty in other areas aside from food and agriculture. Another upshot of the decision has been to consolidate economic power, tightening the relationship between the federal government and the big corporations.

Passage of Massie’s proposed amendment could lead to large-scale decentralization of food production and distribution as well as deregulation of intrastate food commerce. The federal government would still have jurisdiction over ingredients obtained from across state lines by food businesses that only produce and sell their products within one state, but arguably the federal jurisdiction would end with the start of the production process.

Passage of the amendment would mean the repeal of the disastrous 1967 Wholesome Meat Act as it applies to intrastate commerce, the Act that has been largely responsible for the transformation of the meat industry into an oligopoly where four firms control 80 to 85% of the market. Passage would lead to the Poultry Products Inspection Act no longer applying to intrastate commerce; four firms have around 60% market share in that industry as well. The FDA Food Safety Modernization Act (FSMA) will no longer apply to those producing and selling within a state, meaning those producers will no longer be subject to onerous FSMA regulations, such as the rules on preventative controls, produce safety standards, current good manufacturing practices, and additional traceability.

Passage of the Massie amendment should bring about more self-sufficiency in food production and food security within a state, improved food safety with better traceability for locally produced foods, and strengthened freedom of food choice, with food producers no longer being subject to onerous federal regulations. Somewhere Roscoe Filburn is smiling.

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