December 26th, 2011

Highland’s Justified Food Freedom Ordinance

The following is an op-ed published in the Daily Herald, in response to their editorial. See also my Tenth Amendment Center post on the subject for background on the Highland city ordinance.

I write to point out the many inaccuracies in the Herald’s recent editorial (“Highland tilts at D.C. windmill,” Dec. 15) regarding the recently-passed Highland food freedom ordinance.

The Herald explains that this ordinance attempts to exempt local agricultural producers from state and federal licensing and inspection laws. This is blatantly untrue; the ordinance introduced by Councilman Butler and passed by a majority of the council does absolutely nothing in regard to state laws.

After expressing their sympathy for those who feel crushed under the oppressive weight of federal bureaucracy, the Herald’s editorial board dismisses Highland’s action through a series of false and misleading claims.

First, they claim that “it is simply a fact of law that the federal government has wide-ranging powers of commerce.” In support of this claim, they cite “long practice” and “rulings of the Supreme Court.” The slave trade was likewise defended with such intellectually disingenuous explanations.

City attorney Kasey Wright and the Herald editorial board believe, as do so many others, that the judicial opinions of black-robed lawyers have conferred upon Congress new authorities to micro-manage any and every commercial activity within the country’s borders, including in one’s own home. This misguided and horribly dangerous assertion primarily rests upon an FDR-era court case, Wickard v. Filburn, which radically violated the original intent of what the founders meant by allowing for the power to “regulate” interstate and foreign commerce.

The editorial board also objects to the inclusion of text from the Declaration of Independence in support of an individual’s right to freely produce and consume food. And yet we read in Utah’s own Constitution that “frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” For the Herald, though, referencing our God-given rights is, as they write, “irrelevant to the question at hand.”

In another unfortunate manifestation of constitutional apostasy, the Herald flatly decrees that Highland’s attempt to object to the unlawful usurpation of un-delegated power by the federal government is without basis because, as they explain, “federal law is supreme over … local ordinances.” This is misleading at best.

This is a reference to the “supremacy clause,” often argued by many to be the authority by which federal law inherently and automatically trumps any lesser, conflicting law. Thus, under this argument, Highland’s codified attempt to reject federal regulation over local food would immediately be rendered invalid.

However, this clause (in Article VI, Clause 2) states that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” In other words, a federal law can only invalidate a lesser, conflicting law if that federal law was made “in pursuance” of (or, is justified by) the Constitution.

Herein lies the entire basis for Highland’s objection to federal regulation over local food. The editorial board states as its “bottom line” that “Highland has absolutely no authority to immunize its residents against the authority of the… federal government.” But the true bottom line is this: has the federal government ever been constitutionally delegated the authority to dictate what an individual can grow, sell, and consume within city or state limits?

The answer is no. Supreme Court Justices cannot magically create new congressional authority, and as the people have not delegated such power to their government, they therefore retain that power (as the Tenth Amendment states). Highland’s proactive response to an overbearing, Constitution-violating federal government should be applauded and replicated, for as James Madison once said, “it is proper to take alarm at the first experiment on our liberties.”

5 Responses to “Highland’s Justified Food Freedom Ordinance”

  1. Blaine Nay
    December 26, 2011 at 8:50 am #

    Excellent essay. Every local elected official (city council, school board, etc.) in the nation needs to read and heed this article.

  2. TGraham
    December 27, 2011 at 11:43 am #

    ” For the Herald, though, referencing our God-given rights is, as they write, “irrelevant to the question at hand.”

    Here is the main problem. According to mainstream media, we do not have God given rights, all of our rights come from government. Thus we are told what to do, how to live, how to eat etc….

    It is my hope that every local and state government(s) take notice and throw the chains of the federal governent off of the back of we the people.

    It is the govenment that is restraining our God given rights.


  3. Jim
    December 27, 2011 at 3:58 pm #

    Those would be rights given by a ‘deistic’ god, not a ‘theistic’ god.

  4. TRON
    December 28, 2011 at 9:34 pm #

    Connor writes:

    “This misguided and horribly dangerous assertion primarily rests upon an FDR-era court case, Wickard v. Filburn, which radically violated the original intent of what the founders meant by allowing for the power to “regulate” interstate and foreign commerce.”

    This implies all the founders of the Constitution supported States’ Rights over Federal.

    Did Jefferson believe this? Yes, he ran on the idea of States’ rights. Even repealing George Washington’s federal tax.

    But Washington did not agree stating (speaking of counties of states), “…yet these counties, with as much propriety might oppose themselves to the laws of the state in [which] they are, as an individual state can oppose itself to the Federal Government, by which it is, or ought to be bound. [When counties] come in contact with the general interests of the state, when superior considerations preponderate in favor of the whole, their voices should be heard no more; so it should be with individual states when compared to the Union.”

    And James Madison went so far that in forming the Constitution he wanted to eliminate states sovereignty.

    “Those, like Madison, who thought democracy in the state legislatures was excessive and insufficiently “disinterested”, wanted sovereignty transferred to the national government.” (

    And John Adams signed the Alien and Sedition Acts

    Which Jefferson repealed.

    So the founders were just as split as we are today on States’ Rights.

  5. JJL9
    December 29, 2011 at 3:56 pm #

    TRON, the “founders” as we call them, were diverse men, with diverse opinions, and philosophies. That I will give you.

    But, in the end, the Constitution that emerged was one that championed individual liberty. The Constitution that emerged was one that put in writing, sealed with the blood, honor, and treaure of those that fought for it, a recognition of the God-given, natural, or inherint rights that individuals have, and a recognition that our government cannot rule over us, but rather tha we rule over it.

    The Constitution did not create these rights or grant these rights, but was simply a written recognition of this fact.

    Was it perfect? It was not. One only need mention that slavery continued to prove that.

    But it was declared by modern prophets to have been inspired by God. It was declared by modern prophets to have been written by men that were raised up at that place and that time for that very purpose. So, while they may not have all agreed on everything, what matters is that the document that was produced, signed, and ratified by the states, was understood to hold dear the liberties of individuals, and to hold at arm’s length, with disdain, a tyrannical, overbearing government.

    That some of them returned to their same, tired arguments after all of this does nothing to change the fact that the hand of God guided them in the process of the Constitutional Convention, and brought forth the Constitution. The words had meaning. And they became the Supreme Law of the Land.

    In fact, although I mentioned that slavery continued, it can be argued that a natural result of the ratification of the Constitution was that slavery was to be eventually abolished, for the abolishment of slavery was the only natural eventuality of adherence to the principles upon which the Constitution was founded.

    As such, the amendments to the Constitution, such as the first 10, are only natural. They are built upon the same principles that were enshrined in the Cosntitution as it was originally ratified and understood. Many of the other amendments are clearly contrary to those principles. They become the law of the land, but they do not carry the weight of natural law. They are wrong. They should be repealed. It is not a matter of opinion.

    But regardless of all of that, nowhere was the Supreme Court granted the sole right to declare laws to be Constitutional or not, and nowhere were they granted the right to unilaterally make changes to the Constitution.

    Yet, this is exactly what they have been allowed to do. Allowed by who? Allowed by everyone. Well, perhaps now by everyone except in this case, the city of Highland.

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