The Shredding and Re-Packaging of the U.S. Constitution: Does It Now Become a Piece of Manufactured Food?
Tuesday, December 1, 2009 at 04:34PM 
One theme that regularly asserts itself here is what the U.S. Constitution does and doesn’t allow as concerns food regulation and the right of private individuals to engage in private contracts.
The fact of the matter is that the Constitution doesn’t say anything about regulating food, But the Constitution omits lots of things that are regulated today (vehicles, barber shops, drugs, doctors, hospitals, etc., etc.). I’m afraid piling on Lykke about the absence of an explicit statement isn’t a productive exercise.
Similarly, the Constitution explicitly prohibits interference in private contracts between individuals; Article 1, Section 10 provides:“No State shall enter into any…law impairing the obligation of contracts…” Yet various states have repeatedly interfered in herd-share and buyers club contractual arrangements between individuals; I discuss in my book some of the reasons behind the marginalization of the Contracts clause.
(It should be noted that the same clause of the Constitution allowing for private contracts also prohibits any state from making “…any Thing but gold and silver Coin a Tender in Payment of Debts…” That prohibition has been ignored as a matter of American monetary policy since the early 1970s, when President Richard Nixon unilaterally reneged on the country’s policy of backing its currency with gold.)
The bigger issue over the Constitution isn’t whether it allows something, but how it is interpreted by judges, legislators, and presidents. And increasingly, the Constitution, much like owners of small farms, is being marginalized. And because judges refuse to stand up for it, legislators and the executive branch's regulators ignore it ever more. Give 'em an inch and they'll take a mile.
Interestingly, concern about the marginalization of the Constitution is working its way into the financial mainstream, which offers some hope—after all, once big money is affected, then things often happen in this country.
I was amazed to read this statement yesterday in a very popular financial newsletter that is distributed to more than one million subscribers, from the head of a large mutual fund:
“Aside from the fraction of bailout funding that was specifically allocated by Congress through legislation, these actions [the Fed bailing out financial institutions] represent an unconstitutional breach into enumerated spending powers that are the domain of the elected members of Congress alone. The issue here is not whether the Fed should be independent from political influence. The issue is the constitutionality of the Fed's actions. The discretion that it has exerted over the past two years crosses the line into prerogatives reserved for Congress. That line needs to be clarified sooner rather than later.”
One of the places where we see a vivid example of the trampling of Constitutional guarantees is in the new food safety legislation that is close to being approved by Congress. I’ve been reviewing the U.S. Senate’s version (Senate Bill 510) over the past couple days, and I came across a sentence that grants the U.S. Food and Drug Administration the power to ignore the Fourth Amendment of the Constitution prohibiting searches and seizures without a warrant:
“(2) USE OF OR EXPOSURE TO FOOD OF CONCERN- If the Secretary [of Health and Human Services] believes that there is a reasonable probability that the use of or exposure to an article of food, and any other article of food that the Secretary reasonably believes is likely to be affected in a similar manner, will cause serious adverse health consequences or death to humans or animals, each person (excluding farms and restaurants) who manufactures, processes, packs, distributes, receives, holds, or imports such article shall, at the request of an officer or employee duly designated by the Secretary, permit such officer or employee, upon presentation of appropriate credentials and a written notice to such person, at reasonable times and within reasonable limits and in a reasonable manner, to have access to and copy all records relating to such article and to any other article of food that the Secretary reasonably believes is likely to be affected in a similar manner, that are needed to assist the Secretary in determining whether there is a reasonable probability that the use of or exposure to the food will cause serious adverse health consequences or death to humans or animals.”
Amazingly, that is just a single sentence. But such language, representing the worst application of lawyers’ legal training, is used throughout the legislation to confuse and obscure. I would venture that many lawyers can’t figure out what the hell it means, except that basically, FDA agents who say they’re suspicious of some producer’s food, can present “appropriate credentials and a written notice to such person,” and have at a company’s records.
And by the way, try to figure out how the legislation defines what a “farm” is, which is supposed to be excluded. I can’t find the exact language, but my understanding is that once you wash or package any food, you transition from being a farm to being a food producer, subject to this legislation.
It’s understandable why even the big money interests are becoming concerned.
Reader Comments (41)
When you(the human being) are playing "Monopoly"(the game),your token(the legal person) will end up in jail if it lands on the wrong place on the board.The rules of the game apply in this case,not the Constitution.The Constitution hasn't been "marginalized" ,the Constitution does not have anything to do with the game of Monopoly.Likewise when the legal person is playing the game of Commerce,It is bound to follow the rules of that game.The government makes the rules and changes them when it likes.Human beings can choose to not play that game.In fact they cannot play the game of commerce.Only legal persons can play.If a human being wants to play,they can use the legal person that the government created for them when their birth was registered.While their legal person is playing the game,It is important to remember that the legal person and the human being are not the same thing.
Unfortunately governments always assume that everyone is acting as a legal person and is playing the governments game of Commerce.It is up to the people to preserve the Constitution by letting government officers know that we aren't participating in that game.
The Constitution guarantees us that participation in the game of Commerce is voluntary.
Our herdshare has worked very well for us. We formed a cow-owners association (wherein a person buys in with a SILVER dollar), puts up additional money to buy cows and other up-front costs, and pays a monthly maintenance fee that covers ongoing expenses such as our agister’s salary, feed and veterinary services, a rainy-day fund, etc. For their money, members get milk and as the herd becomes larger and more valuable, any added herd value – which would show up in a reduced monthly maintenance fee.
We had great advice in setting this up. This model was created with significant inputs from FTCLDF and Katherine Russell. We went ahead with this project because we wanted local raw milk, we had arranged for an excellent agister, and we felt that we had a very good, legally viable arrangement based on contracts…. And no milk is bought or sold !! (I don’t fully understand why it was important to buy in with a silver dollar, but it was explained to me that this put us in a slightly different legal category.)
I know it DOES require significant initial capital from each member, but this requirement is intended to shield the organization from criticism about skirting ownership issues. Initial capital aside, I’ve often wondered why this model has not been copied widely by farmers who want to provide raw milk – particularly by those who would milk less than 10, 20, 30 cows. If the person could farm without having to personally capitalize a significant portion of the start-up costs, wouldn’t that be very attractive? Where’s the downside?
Incidentally, this milk comes with all the cream in it. Our cream level varies from cow to cow depending on factors like where she is in her lactation cycle, the time of year, etc, but the jars are usually 20% or 25% up to almost 40% cream. It’s richness you can taste. About a year and a half ago, I gave some to the owner of a licensed raw milk dairy and was told that it was better that theirs – and it was.
Get your herdshare before they change the laws.
What you say sounds nice and all, but... I did watch the YouTube videos showcasing John, but all that I actually took out of those videos was that he was going to destroy his registration with the mother corporation (his birth certificate). There was also some helpful information on how our actions, or lack thereof, bind us to various contracts that the mother corporation puts upon us.
You talk about playing their game of Commerce. So how do we actually stop playing their game of commerce. If I were to start a distribution of raw milk in some areas, I could be locked up. Just the fact that I am registered with the corporation means that I must abide by all of its numerous statutes or make donations to the corporation's bottom line through fines. That would be good for making a stand, but I think the goal is to actually make raw milk available to more people and not make laughing stocks of us "crazy" farmers.
I guess, said a different way, even if we let the "government officers know that we aren't participating in that game", its not like they will let us continue doing what we feel is right and helpful. It seems like whoever has the might has the right and the corporation, I mean the government, definitely has the might to do almost whatever they please as long as they don't upset too much of the population that there are mass riots. It seems like that is almost what needs to have happen to change things around.
So how would you make raw milk available and at the same time not play their commerce game? It seems that at some point people's personalities would need to be used, whether in keeping track of product purchases or just who wants what. Would everyone involved have to have aliases? I guess I am so entrenched in the game that I can't see any viable alternatives...
Cheers, Brandon
I also have been a herd shareholder for almost five years and I very much appreciate the close personal and financial relationship I have with my farmer. I've even developed software that is currently being used by several farmers in Ohio to manage their shareholder orders and create pick/invoice reports. As far as raw milk is concerned I personally wouldn't do it any other way.
However, from my farmer's point of view having to deal with the herdshare boarding contracts, bills of sale and owned shares is yet another headache over and above running a family farm. He would much prefer to just sell raw milk directly off the farm rather than deal with people frequently buying and selling shares and hunting down shareholders who forget to pay their monthly boarding fee. The software I've provided does ease the job of tracking shares and boarding fees somewhat, but it's still a bit of a hassle for him.
Another issue with herdshares is the problem of seasonal availability. Right now winter is setting in here in Ohio and a number of our cows are dry. Since this is a closed herd when shareholder demand exceeds supply then some people get shorted on their milk orders. There are other farms and herdshares in the area, and if direct raw milk sales were legal then the farmers could augment their milk supply from other trusted herds in the vicinity during seasonal shortages. On the other hand, shareholders must pay the same boarding fee regardless of how much milk they actually receive so seasonal shortages tend to work out better for the farmers. (However, when the milk supply is plentiful the shareholders can sometimes receive more than their allotment so it all tends to work out in the end.)
We have been taught (indoctrinated really) that our rights emanate from government. That is wrong. Our rights are in fact “endowed by our creator.” The indoctrination of America into the mistaken notion that their rights are granted by government has led us into this mess, and made us believe that the road in was one-way only. This casues us to behave as if freedom can be expanded only by arguing over the strength and length of government-created tethers.
Strong-willed individuals who challenge the ruling classes have always been the best hope of freedom for all. Our founders understood that. We should respect their efforts.
************************************
About piling on to Lykke…
I don’t think there is any ill intent here. Nevertheless this is an idea forum, and Lykke has been the most persistent purveyor of the idea that regulators must be in control. It is inevitable that responses to that idea would come his/her way.
I stand by my desire to hear Lykke’s feelings about these extremely important self-evident truths. (And will add that I am very happy to have Lykke here, and apprecidate his/her willingness to act as a foil.)
**********************************
And finally, Steve,
Did Nixon’s act violate the Coinage Act of 1792? (If I remember my history correctly, the Coinage Act made debasing our currency a felony, punishable by death.) If so, what are we to make of such federal actions?
http://library.georgegordon.com/audio
Do you read the PPJ Gazette? http://ppjg.wordpress.com/ Marti Oakley and her merry band of revelers discuss farm issues, among other things, in the context of the US Corporation and the government-created fictions.
Brandon, this would also be a good starting point to help understand the Matrix.
Paul Griepentrog from the PPJ will be on the radio tonight discussing the food safety bills.
http://ppjg.wordpress.com/2009/12/02/paul-griepentrog-on-randy-yarbrough-radio/
Paul is very skilled in the law. This should be a great interview.
Our bookkeeping started out as a seat-of-the-pants operation which worked fine when we had only two cows. As the cow owners assn has grown, things have become more complicated, and when there has been a change in “bookkeepers” (Do you know of any other English words that have three double letters in a row?), sometimes there is a hiccup.
I’d like to hear more about the specifics of your software. We can talk off-blog. Email me at daveshanken@juno .com if you would like to share.
Relying on cow share contracts not being illegal seems a rather shaky foundation. I would much rather stand on the RIGHT TO LIFE. For that right is meaningless if a 3rd party can control the method, means, or access to the food necessary to sustain that life. The government has no legitimate authority to regulate food. Does anyone know if there is even a single state Constitution that purports to grant the authority to regulate food?
Don't they require a very dedicated type of customer? In my experience most just want to buy their milk and go and anything more difficult than that turns them off.
Are they ever a viable option outside of states where milk is not 'legally' able to be sold?
Pete - I agree with your statement; I don't know the answer to your question, although I would suspect there are none, simply because who would have thought it necessary to protect such a basic and obvious right?
http://www.marlerblog.com/2009/12/articles/case-news/dungeness-valley-creamery-and-whole-foods-linked-to-raw-milk-e-coli-outbreak-in-sequim-washington/
cp
It is sad that some individuals have gotton sick in Washington. I sincerely hope that the individauls involved can get competent treatment and that their health can stabilize.
I wonder CP, how do you ensure that your digestive track has all of the beneficial bacteria and enzymes that your body needs to stay healthy?
If all of our foods are sterilized, then I guess the only way would be through supplementation. Most supplements only contain 1 to a handful of strains of good bacteria as compared to the hundreds of strains found in raw milk (good bacteria that is). So I am assuming that because we may not know exactly what all of those other strains of good bacteria do, then they must not be important. Isn't that pretty presumptuous of us? The cost of trying to maintain a healthy digestive track on sterilized food can be astronomical too. I'm not saying that contaminated milk is OK, but I don't think a forced sterilized diet is OK either... I think that is a perfect recipe for compromised health.
I think that the conventional sick care, I mean health care, industry is very reluctant to admit what kind of a role the good bacteria play in our overall health and well being. If we just ignore it then it doesn't matter, right?
For everyone else too,
Does anyone else find it ironic that people throw out that eColi O157:H7 can sometimes cause HUS when it seems to me (I'll admit that I am no expert in this area - just opinions) that the treatment of eColi is more of a factor in this then just the fact that they have a problem with O157:H7. If someone goes to a doctor and is diagnosed with O157:H7 and they are put on antibiotics, then it seems like it is more likely for the person to spiral downward fast! If the standard treatment protocol was different, then maybe the outcome would be different as well. Hmm...
Brandon
"Two-thirds of all store-bought whole broiler chickens contain salmonella and/or campylobacter, according to a study by Consumer Reports.
The magazine tested 383 chickens it purchased in 100 supermarkets, gourmet- and natural-food stores, and other mass retailers in 22 states and found an alarmingly high level of contamination.
More than 80 percent of Tyson and Foster Farms chickens contained either one or both salmonella and capylobacter, making them the name-brand chickens with the most contaminates.
On the other hand, Perdue had the cleanest chickens with 56 percent of their birds found to be free from food-borne organisms.
Consumer Reports found the safest purchase to be air-chilled, organic broilers with 40 percent containing one or both salmonella or campylobacter."
40-80% contamination--and this is allowed by the govt? Wonder if these are factory farmed chickens?
I think Convenience is a big issue for many who would like to join a cow-share. Not many cows are close to cities,( unless you count the nasty feedlot cows south of Sacramento). Driving an hour and half or more(one way) to get milk weekly would get old quickly. (if retired, it wouldn't make a difference) The cost and fees aren't an issue, it's logistics. The initial join fees are reasonable as were the monthly maintenance fees. I don't live in a convenient area.
It would be worth it to pay someone to care for and milk my share. They know how to care for the cow, what to look for in case of illness, proper handling of the milk, etc. I guess this too is a convenience, one I'm willing to pay for.
Aren't the majority of those who seek out raw milk more concerned with healthier foods, lifestyles?
The "laws" dictating that Fast-food/restaurants make nutritional information available to the consumers is supposed to do what? Most who consume fast foods don't appear to care what goes into their mouths and when someone is at a restaurant, do they really care about the nutritional information? Not likely-they go to enjoy whatever they ordered. Will you look at the labels soon to be on menus?
Why the extremes of either consuming sterilized foods or raw milk? Is there not an in between that is considered healthy? How do I ensure that my digestive track has all of the beneficial bacteria and enzymes that my body needs to stay healthy? I consume raw juice made from 10 different vegetables twice daily, raw salads, raw fruit, fermented vegetables, kefir, yogurt, and a probiotic supplement.
Health is not all about raw milk.
BTW, the standard treatment program for treating E.coli 0157:H7 is not antibiotics.
cp
Appreciate your input on gold and private contracts. On gold, my point is that Constitution pointed toward gold and silver as only recognized currencies, and U.S. dollar was backed by gold (and coinage contained silver) for nearly 200 years, until Nixon changed the gold backing. He did so partly because the government couldn't pay for the war in Vietnam and other rapidly expanding obligations based on the country's gold stash, so he solved the problem by moving to a paper currency backed by nothing. As Don points out, we see what's happened to the value of the dollar priced in terms of gold...and the situation promises to get much worse.
David
Suppose you want to start a herdshare to distribute raw milk.Each person that wants milk will have to sign a contract with you which you will also sign.This is a legal document.It is a contract between your legal person and their legal person.But what are these "legal persons"?How does this contract between these legal persons protect you from interference by the state or federal government?Your legal person is registered with the state government.This means it is the property of the state.The state grants your legal person some rights and also gives it duties.One of it's duties is to obey all of the statutes of the legal system in that state.If the state has a statute that can be interpreted as prohibiting the distribution of raw milk,then your legal person's herdshare contract is in direct conflict with this statute.
Why wouldn't you just milk your cow and drink some of the milk,make some cheese and butter and feed skim milk and whey to a few pigs and chickens.You will probably have some extra of all of these things at some point.Find someone or maybe someone will find you and want to help out in exchange for some of the food.Even if your friends live in the city and only can offer monetary support,is anything illegal about that?Do you really need a legal contract?I think what you really need is trust and understanding and loyal support.These things take time so your community of supporters will necessarily grow slowly.You have a community of people working together to produce their own food.Even though the people are geographically separate they are still a community of farm supporters.There will soon be more people wanting to join your community than can be fed from the land you have.Some one might think this is a business and think that some statute is being violated.It is reasonable to ask at what point in the growth of this community of food producers did they cross the line into illegal activity.It is important that everyone understands that they are not operating a business.No attempt to be businesslike should be tolerated.Everyone is so conditioned into playing the game of Commerce that it will be difficult at first.You will have to be patient and persistant.Remember that you are all involved in the persuit of happiness.If you can pull it off ,I guarantee that government officials won't know how to respond to such a thing.
The state has the original copy of all of our birth certificates which means that they have legal ownership of all of those names.They don't own any of us unless we think that we are that name.The legal person is just a name.When we are working together to produce our food we are working in a common law framework,we don't use those names that the state owns.In this situation we do have all of our Constitutional Rights.I expect that we will be challenged.It will be a great opportunity to learn from the mistakes we are making.Eventually we will get it right if we don't stop trying just because we are afraid.