In Defense of Food Liberty: The Right to Farm in Our Communities

Reader Contribution by John Klar And Dave Berg
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Watering a vegetable garden. Photo by Flickr/Lisa Jacobs

The COVID pandemic traumatized the American economy as well as citizenry, exposing vulnerabilities (and dependencies) in the nation’s food distribution system. More Americans are now alert to the issue of food security as well as food quality — what if the nation had been as completely dependent on China for basic foods as it was for medical masks? In times of crisis, local farmers and locavore consumers are a vital part of the solution to this problem. But in today’s highly regulated world, the legal parameters of the “liberty” of farmers to sell food to their customers — or even of citizens to grow vegetables for their own consumption! — continue to be defined.

Americans’ profound dependence on a fragile, fossil fuel-gobbling, industrial food supply has increased with technological advances, globalization, and expanding government regulation of the hitherto sacrosanct “family farm.” As the factory food supply has grown, the health and safety risks of those “modern” and often inhumane facilities have been employed as justification to expand regulatory restrictions of smaller farms.

Less than six decades ago, barely one-third of states required meat that was slaughtered and sold on the farm to be inspected. Disease outbreaks from “factory meat” have since been used to greatly expand costly regulation of non-offending small farms. This compels an unhealthy trend: Younger would-be farmers and new ventures are discouraged from investing in the localvore economy.

Examples from the Frontlines of the Fight to Grow Food

The steady urbanization of America, encouraged by regulations and subsidies that favor industrially-produced food, continues to detach modern man from connection to the soil and food supply. This has resulted in bizarre regulatory restrictions that would be (properly!) seen as absurd a few decades past. Consider these reports back in 2014:

  • In 2011, a woman in Oak Park, Mich., faced the possibility of jail time for having kept an edible garden in her front yard. The city claimed the woman’s vegetable garden didn’t fit its definition of “suitable live plant material.”
  • In 2012, a Newton, Mass., resident was forced by the city to dig up the tomato garden he planted in his front yard or face a fine.
  • That same year, Tulsa, Ok., code enforcement officers trampled onto an unemployed woman’s front yard and ripped up the edible garden she had planted to help feed herself during lean times.
  • In 2013, Miami Shores, Fla., amended its ordinance to prohibit front yard vegetable gardens and informed Hermine Ricketts and her husband Tom Carroll that they faced fines of $50 a day if they did not destroy their beautiful garden.

This battle between municipal zoning laws and gardening has heightened due to COVID, but conflicts in the countryside have raged for years to protect traditional farms from newcomers who prefer the visual to the olfactory dimension of rural agriculture: “right-to-farm” laws have been widely enacted in response. (Not content to inhibit the self-reliant from growing vegetables or rearing chickens in suburbia, the city mice have expanded to surrounding agriculture lands; food-hostile zoning edicts in tow).

Claiming health and safety powers, government has regulated “unhealthy” foods based not only on production but on consumption — taxes and bans on sugary or fatty foods abound. If universal food provision is a basic human entitlement, what kind of food? And how can any right be preserved when humans’ connections to the land and food are artificially severed? Does the right to “receive” food exist via government provision, or is there an individual right to produce one’s own that is sacrosanct and untouchable by government?

Food Choice is a Fundamental Liberty Right

It does not seem controversial to state, as did Attorney Ari Bargil of the Institute for Justice, that “We have the right to use our own properties to grow our own food, as long as that use doesn’t impinge on someone else’s freedom to enjoy their property.” Yet that is precisely the frontline of the battle: government has impinged that liberty.

As 2015 Report by the Institute for Justice warned:

Today, from the federal government on down to states and cities, elected officials and regulators are cracking down with increasing relentlessness on the lives and livelihoods of the farmers, chefs, artisans, restaurateurs, food truck operators and others who raise, produce, make, cook and sell the food we eat—and in the process, undermining their right to earn an honest living and provide for themselves…. Food freedom is under attack…. The Founding Fathers fought against British laws just like these, and sought in the Bill of Rights to ensure that no American government would ever mimic Britain’s wayward colonial attacks on food freedom…..It’s time to remind our elected officials of the lessons of food freedom and to demand the return of our intertwined rights of food freedom and economic liberty.

Co-author Dave Berg published a Law Review article in 2013 titled Food Choice Is a Fundamental Liberty Right, (9 J. FOOD L. & POL’Y 173), which argued for constitutional support for an individual’s right to purchase meat and poultry directly from the person who raised and participated in the slaughtering of that meat or poultry without mandatory governmental inspection.

Dave Berg. Photo by John Klar

Some have suggested granting such a right post-Citizens United would expand corporate power at the expense of individual liberties, but it is hard to imagine Monsanto claiming it has a “personal corporate right” to choose what foods it eats any more than Nike could credibly claim it has a right to an abortion. We Americans witness our neighbors being prosecuted not for chopping up a cow in their front yard, but for planting zucchini! Are we to deny people the freedom to garden under the pretense that corporations would abuse that right?

Moves Toward Regenerative Economy

During the trauma of the COVID pandemic, citizens of all political persuasions witnessed the industrial nature and Orwellian dependency that is their modern food supply. Homesteaders (and would-be homesteaders) are the antidote to a growing effort to transfer responsibility to the government and mega-corporations for that which we once did ourselves — grow healthy food and eat it. COVID has revealed the folly of industrial food, but also armed many more with the desire and awareness to respond regeneratively.

With increasing dependency on Chinese and other foreign food producers that are often subjected to lax regulation, it is dubious to further curtail local farmers and consumers from their centuries-long traditions of commerce in the name of protecting their health. As increasing awareness of the importance of healthy local food motivates more people to try their hands at home gardening, chicken-rearing, or milking a family cow, the collisions with ubiquitous stifling regulations — zoning laws, meat inspection regulations, labeling requirements, etc. — will increase. It is imperative that the right to grow one’s own food be granted its proper priority for human health and pursuit of happiness.

Henry Kissinger famously saidControl oil and control the nations; Control food and you control people. One need not point to nefarious intentions by Big Brother Monsanto to see the logic of Kissinger’s proposition — and the imperative to oppose any control of one’s food liberty by Big Government or Big Ag (the two are often aligned). Stay tuned as Americans strive to retain liberty in their own food production and distribution: the battle is just heating up.

John Klar

John Klar raises grass-fed beef and sheep, and seeks to educate people about where their food comes from and how large corporate interests wish to dominate food production. He moved to Vermont and began farming in 1998. John and his wife, Jacqueline, built and operated an artisanal raw-milk cheese house, and have raised pigs, chickens, sheep, horses, cows, and goats, and grown many varieties of vegetables and herbs. Connect with John on Facebook, and watch his farming videos on YouTube. Read all of John’s MOTHER EARTH NEWS posts here.

Dave Berg worked as a maritime lawyer in Boston for almost 20 years and now is a lawyer and legal writer in Milwaukee. He has been interested in food choice and food rights for some time and, several years ago, published an article in the Journal of Food Law and Policy that proposed that food choice is a fundamental liberty right and that laid out a framework for challenging food regulations as an infringement on consumers’ liberty rights.

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