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.

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  1. There’s two issues at work here. Don’t mix them up: (1) Animal welfare and (2) freedom to eat.

    Which animals you can kill for food, and how you have to treat animals in your care, implicates an entirely different set of questions than whether you can cultivate potatoes or hemp seeds.

    1. But when the sick animal is going to be killed either way, isn’t it then just a safety issue with regards to what is done with the meat? Either the meat is safe to consume or it gets turned into fertilizer.

  2. I say we roll back to foods available to the founding generation only.

    1. Alcohol for breakfast makes a farmhand hale.

    2. I’ll need to research whether they had access to fine tequila before I jump on this bandwagon. I’ll begin my research this weekend. By drinking tequila.

      1. Well, certainly, tequila was available in Mexico at the time. There must’ve been some trade between the Colonies and Mexico.

        I say tequila is permitted.

        1. second…Vodka too (the grain kind not that potato swill)

          1. When was bourbon invented?

            1. bourbon was not invented. it was a gift from god

              1. I accept this as the fact it is. I understand the Pilgrims brined their turkeys in bourbon.

          2. Mon dieu! Chopin is the best (of the readily available vodkas) vodka I’ve ever had.

            And I understand that you all will give credence to the tequilas and the vodkas, but bourbon? We don’t want the Irish!

            1. It’s not Irish; it’s Scottish.

              1. Scottish-American, that is.

                1. I know, Pro L. I was going to go with Scots-Irish for the Appalachia region, but it ruined the tempo of the Blazing Saddles reference.

                  1. Irish? We don’t need no stinkin’ Irish!

    3. I say we roll back to foods available to the founding generation only.

      We agree with this.

  3. Can we call these the Slaughter-Down Cases?

  4. I have a solution.

  5. What is this “meat” of which you speak?

    1. That’s on a need to know basis citizen.

    2. Remember that stuff in the soup at the celebratory assembly after the 2010 World Cup? Based on the way your womens team is playing, I expect you’ll have another taste in the near future.

  6. It looks to me like the power to ban beef, chicken, fish, pork, or eggs is left to the states.

    Without arguing that doing so would be a good idea, what, other than breaking out the whose ox is gored penumbras, in the Constitution would prevent a state from doing so?

    1. The equal protection clause. Bans on beef, blue crabs, seafood generally, and sausage would have a grossly discriminatory effect on my diet.

      Seriously though … There is a constitutional right to choose one’s sex partners, to ingest birth control devices and to terminate pregnancies, but no right to choose what food to consume? What am I missing here?

      1. sadly., there is no constitutional right recognized to control one’s own body. we see that in several instances

        1) no right between consenting adults to commit incest, even when said incest has no chance of creating (genetically compromised) offspring
        2) no right to ingest any drug you darn well please
        3) no right to sell your organs
        4) no right to sell your body for sex (prostutution), although requiring dinner and a movie first is the general date exception ™

        this is why the pro choice (i happen to be pro choice btw) “my body my choice” argument is so specious. there has never been any such right, nor does the (federal) constitution have any such “right to privacy” penumbras and emanations aside. it would be nice if it did, but it doesn’t. Fortunately, my state constitution does which is why cops are so much more limited vis a vis search and seizure here, which is a good thing

        1. there has never been any such right

          [Citation Needed]?

          1. i’m supposed to give you a citation that something HASN’t existed. How exactly does one do that.

            Here, provide me a citation that the constitution does not establish a right to garrot nuns…

            get the point?

            The fact that there *is* no right to engage in prostitution, sell one’s organs (granted, both commercial rights regarding one’s body) or ingest any drug you want are PRIMA FACIE evidence otoh that there is no such right to do whatever you want with your body.

            Prima Facie. It’s what’s for dinner!

            1. ur ideas have utility so i will use them to wrap my fish n chips.

              1. that’a fair cop!

        2. —“nor does the (federal) constitution have any such “right to privacy” penumbras and emanations aside”—

          I find no Grant of Rights in the Constitution whatsoever. What I do find is restrictions on the actions of Government. There is no authorization for Government to invade my privacy at will, nor is there any Grant of Power to determine what I may or may not eat.

          I need no penumbras or emanations. I have my natural rights.

          1. constitution doesn’t “grant” rights. it recognizes them. regardless of what rights we WISHED it recognized, there is no “right to privacy” listed nor a right to do whatever one pleases with one’s body.

            and the body of US case law supports that.

            i chose to live in a state that does explicitly recognize a right to privacy. what that means in practical terms is that govt. is much more restricted (state govt. , cops etc.) in search and seizure powers etc. those are good things

            but we don’t have the constitution we WISH we had, we have the one we have.

            theoretical talk about natural rights is groovy but it doesn’t change de jure reality

            1. Right to privacy isn’t listed, but per the 9th, it doesn’t need to be.

              You are correct about case law, however. Case law tends to ignore or embrace the 9th, depending on the personal politics of the judges involved.

    2. The 5th?

      Animals are property.

      Mr. X owns a piece of property and wants to give it or sell it to Mr. Y, who wants to slaughter it and eat it.

      The federal government wants to say, “You can’t do that.”

      They pretty clearly are denying Mr. X his property (if there’s a ban on selling such animals) or denying Mr. Y his property (if there’s a ban on slaughtering such animals for food).

      1. the govt has always had relatively broad discretion regarding commerce of property when it presents specific dangers.

        for example, if your property is some old high lead content paint, they can definitely prohibit its sale. they can also prohibit contractors from using said paint, EVEN IF both contractor and homeowner would both agree that they wanted lead paint used on the interior of the house. among other things, this would ostensibly protect future homeowners, visitors etc. or some kid who started eating paint chips 🙂

  7. “Think smaller … and more legs.”

  8. They should already be banned for food under the endangered species act. I mean, what’s more endangered than a sick animal?

  9. should the state have the right to ban soylent green? what if a person wrote a living will type thing that authorized turning his body into meat when he dies for consumption by his friends and relatives? could the state ban this practice.

    charlton heston is dead, but he still wants to know

    1. I’m going home.

    2. Regarding the world hunger thing… I have an unaffectatious idea for your consideration.

      1. irish kids aren’t people. they are tasty goodness

        1. Marinated from the moment of conception.

          1. Irish mothers – Nature’s Marination chambers ™…

  10. Wow, is this Linkedin guy ever a one-trick pony. Food, food, and more food.

    1. While I refuse to respond to the other idiot on this thread I will give in to your trolling: The introduced his as a guest blogger that was going to blog about food issues. I realize reading comprehension is not your strong suit but do please try.

    2. You’re kidding? I never noticed.

  11. there is a deeply rooted historical tradition of access to the foods of our choosing

    While naturally I agree, I found this unpersuasive in court.

  12. This whole business of rights-oriented law is a silly exercise in happening to ask just the right question in just the right way to just the right people at just the right time. There’s no objective way to tell whether there’s any fundamental or deeply rooted right to this or that.

    AFAICT the “reasoning” that got various sex-oriented rights established, starting with birth control, was: The Constitution wouldn’t’ve existed without the USA, the USA wouldn’t’ve existed without people, people wouldn’t’ve existed without babies; therefore there must be something fundamental rights-ish about making babies. Birth control is about making babies, so we guess you gotta be allowed to use it. Abortion is about making babies, so we guess you sorta can do that too, somewhat. Homosexual intercourse is sort of a simulation of making babies, so you gotta be allowed to do that too, provided you ask twice 20 years apart.

    That must be how you’d have to approach food issues too. There would be no USA without people, there would be no people without food; if people hadn’t been allowed to eat what they wanted, they might’ve quit eating and then there’d’ve been no people, so….

  13. Uh, it’s a preemption case. You might want to mention that, since, you know, that’s the relevant law.

    You’re a lawyer?

    1. I disagree. I read the decision, too. You’re right about preemption. That was what the case centered on. At the same time, Kozinski seemed (if I’m reading it right) to issue a broad holding (was it dicta?). I’m not sure that Mr. Linnekin was wrong to point out that the holding allowed for states to pass laws forbidding slaughter of certain species in the name of public health or morals, which might be problematic if a substantive due process claim is filed.

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