Looking Inside the Meat Case: SCOTUS, Judge Kozinski, & "Foodie Originalism"

Earlier this week the Supreme Court agreed to hear the case of National Meat Assn. v. Brown. The case concerns a 2008 California law that banned the slaughter of so-called "downer" animals for use in food.

The Meat Association challenged the ban in federal court. The district court upheld the ban, but the Ninth Circuit Court of Appeals, in a decision written by libertarian-leaning Judge Alex Kozinski, reversed the lower court.

I don't quibble with Judge Kozinski's ruling. I accept the need for laws designed to prevent the spread of poisons and pathogens in food. If a warning will suffice (as in the case of raw milk or alcohol beverages), then no ban can be justified. If a warning will not suffice (as with mad cow disease or cyanide), then a ban is appropriate.

I don't know enough about the science involved in the California case--and I'm skeptical of the law's primary backers, a vegan activist group--but permitting sick animals to enter the food supply seems more like the latter example in which a warning wouldn't suffice.

But where I think Kozinski errs is in the rather expansive language he uses to reach his holding:

Regulating what kinds of animals may be slaughtered calls for a host of practical, moral and public health judgments that…. are the kinds of judgments reserved to the states, and nothing in the [Federal Meat Inspection Act] requires states to make them on a species-wide basis or not at all. Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat.

Really? If a state wanted to ban beef, chicken, fish, pork, or eggs, Judge Kozinski would uphold that?

I wouldn't. (Full disclosure: While I am a lawyer, unlike Judge Kozinski the only robe I'll ever wear is made of terrycloth.) But it appears from his decision Judge Kozinski views this case as largely concerning a state's right not just to legislate for the public health (a traditional Tenth Amendment "police power" of the states) but to make even "practical" judgments about "which animals" people may eat.

I'm not saying states don't do this—California's banned foie gras, of course—but I'm surprised Judge Kozinski supports a state's right to do so. I'm especially surprised he'd reach this conclusion when the facts of the case didn't appear to require him to opine on the issue one way or the other.

If, as Judge Kozinski writes, states are free to decide what animals people may eat, then he also likely believes states are also free to decide what else we can and can't eat. This is, unfortunately, a view held by many on both the left and right. It's what's gotten foie gras, trans fats, Four Loko, and a host of other foods banned. It's precipitated the ban bans I wrote about here earlier today. This is also a view held by the FDA, which recently made clear it belives the federal government can ban whatever foods it wishes, for virtually any reason.

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…. [P]laintiffs do not have a fundamental right to obtain any food they wish.

Several years ago Kozinski had this to say in a Reason interview:

I find it more difficult to tell exactly what the Framers would have thought about things today.

At the risk of sounding presumptuous, there is a deeply rooted historical tradition of access to the foods of our choosing, and we needn't guess what the Framers would think about food bans because we do know what they thought. As I write in my entry on food bans in the forthcoming revised edition of the Oxford Encyclopedia of Food and Drink in America:

Thomas Jefferson, author of the Declaration of Independence, and James Madison, who drafted the U.S. Constitution and the Bill of Rights, spoke out against food bans. Jefferson attacked France's potato ban, saying that restricting food choices goes beyond any "legitimate powers of government." In a pair of subsequent letters to Jefferson, Madison referred to a bill then before the Virginia legislature that would have banned the importation of foreign liquor, beef, and cheese into the state as beyond the power of any state or national legislature, and attacked the bill as "little short of madness."

Furthermore, I contend that individual rights in food and drink played a vital role in bringing about several of the rights enumerated in the Bill of Rights, from the First Amendment's Assembly Clause to the Fifth Amendment's Takings Clause.

I believe the reason culinary freedom—the right to make one's own food choices—is not recognized as a fundamental right by Judge Kozinski and others is simply that no one has ever made a cogent case to recognize the right. In the coming months and years, my goal is to make that case, which I've dubbed "foodie originalism." If Kozinski is correct today about the constitutionality of expansive state powers as applied to the foods we may eat, then my aim (and the aim of Keep Food Legal) is to make him, the FDA, and others wrong tomorrow.

Baylen Linnekin is a lawyer and the executive director of Keep Food Legal, a nonprofit that promotes culinary freedom, the idea that people should be free to make and consume whatever commestibles they prefer. For more information and to join or donate, go here now.