A right to eat what we want?
During the Kagan confirmation hearings on Wednesday, Senator Tom Coburn (R-OK) asked Elena Kagan whether government has "the power to tell people what they have to eat every day" based on the Commerce Clause.
Kagan didn't say no.
In my view, Coburn's implication that the answer is obviously "no" is correct.
The staff over at the Wall Street Journal's Opinion Journal have a different take:
"Coburn presents the question to make it look like an easy one, but if Kagan had responded the way the video title suggests the GOP wanted her to--by stating a broad constitutional principle that "government has no power to tell Americans what to eat"--she would have been vastly overreaching. For one thing, the government surely has some power to tell Americans what not to eat, else the consumption of, say, marijuana-laced brownies would be constitutionally protected."
This strikes me as a rather strange argument from conservatives, until I remind myself that there is more often than I'd like a substantial difference between conservative and libertarian in this country.
On what basis could someone argue that the government, particularly the federal government which is what this debate is about, has any authority in telling people what to eat or what not to eat?
Federal prohibition of marijuana-laced brownies (which I've never tried and have no desire to try) is utterly outside the bounds of constitutionally-authorized federal authority.
The WSJ's argument reminds me of that made by the unfortunately victorious government in the Supreme Court Raich medical marijuana case in which Justice Scalia agreed that the Commerce Clause could be use to support a federal penalty for a single person growing a small amount of marijuana for her sole use in a way which is legal under the laws of the state in which she lives. It was an unconscionable decision for someone who styles himself an originalist. It's noteworthy that justices O'Connor, Rehnquist, and Thomas disagreed with the majority's unjustifiable expansion of the Commerce Clause to regulate something clearly not commerce and clearly not interstate.
When James Taranto and friends, whom I agree with almost all the time, say that "government surely has some power to tell Americans..." you'd think that as self-professed conservatives they have some obligation to at least hint at a source for such authority. After all, do conservatives not routinely assail liberal power grabs, or even non-liberal power grabs such as by George W Bush from time to time, as having no constitutional basis?
The WSJ guys continue, asserting that a hypothetical unenumerated right not to be told what to eat "smacks of judicial activism." I disagree. The Constitution is a document which restrains government. It is not and was never intended to be a laundry list of all our rights. It's absolutely clear that the fact that something isn't listed in the Constitution shouldn't prejudice it against actually being a right. If there is a question about something being a right, the default position must be that it is. It is not "judicial activism" if a court were to proclaim that to void a prospective right, government must have explicit authority.
How are conservatives to maintain the moral high ground arguing against power grabs by government if "social issues conservatives" respect the Constitution's intent to be a government-limiting document in all instances except where they think government should be more involved in our lives?
The WSJ's thoughts on Coburn's "right to eat" question highlight a major difference between conservatives and libertarians -- and why this nation needs more libertarians.
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