Filburn’s Revenge? Congressman Massie Proposes Food Freedom Amendment

Representative Thomas Massie (R-KY) has introduced a joint resolution to Congress proposing what could become the 28th Amendment to the U.S. Constitution. The resolution proposes an amendment specifically protecting the right of the people to grow and purchase food from sources of their choosing.

The text of the proposed Food Freedom amendment states:

“The right of the people to grow food and to purchase food from the source of their choice shall not be infringed, and Congress shall make no law regulating the production and distribution of food products which do not move across state lines.”

The Kentucky Congressman also made a tongue-in-cheek reference to the proposed 28th Amendment as “Roscoe Filburn’s revenge.”

The 1942 Supreme Court case of Wickard v. Filburn pitted Ohio farmer Roscoe C. Filburn against Secretary of Agriculture Claude Wickard when Filburn was penalized for violating the 1938 Agricultural Adjustment Act which sought to regulate the production of wheat in order to stabilize the nation’s food supply during the Great Depression.

Specifically, the law limited the amount of wheat that farmers were allowed to grow on their own farms. Filburn argued that the excess wheat he produced to feed his own animals was for personal use and did not enter into commerce and could not be regulated by Congress.

But the Supreme Court upheld the law, saying that even if Filburn’s activity had minimal impact on commerce, the aggregated effect of many farmers doing what he had done might exert a substantial effect on interstate commerce.

That broad interpretation of the Commerce Clause of the U.S. Constitution opened the door to virtually unlimited Congressional power to regulate commerce.

Rep. Massie’s resolution would have to be ratified by two-thirds of each House of Congress and then ratified by three-fourths of the legislatures of the several states in order to become the 28th Amendment.

The difficulty in getting such ratification at the national and state level combined with the fact that  Congress rarely recognizes any meaningful Constitutional limits on its power, makes the proposed Food Freedom amendment a long shot.

Defunding and abolishing corporate-captured regulatory agencies like the FDA might prove a more effective approach in the short term.

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Photo: WASHINGTON, DC - OCTOBER 17: U.S. Rep. Thomas Massie (R-KY) walks off the floor after the House of Representatives failed to elect a new Speaker of the House on the first round of votes at the U.S. Capitol Building on October 17, 2023 in Washington, DC. The House has been without an elected leader since Rep. Kevin McCarthy (R-CA) was ousted from the speakership on October 4 in an move led by a small group of conservative members of his own party. (Photo by Joe Raedle/Getty Images)

Notable Replies

  1. The infamous Wickard v. Filburn case could have been presented as a Fifth Amendment Takings challenge. The ruling eviscerated Filburn’s private property rights, rendering his ability to use his property as he saw fit (and as it most likely was zoned) worthless. The appropriation of private property for government use through regulation is a creeping phenomenon, but even a degree of loss of use for property owners defeats the very idea of private property when the government may decide at any time to revoke one’s ability to use it for the purpose intended. What do we truly “own” when we have no control over its use? What is “commerce” if it doesn’t involve another party to a transaction? Here, again the SCOTUS acted in a manner that violated Americans’ rights and this is another in a long line of cases involving all manner of issues which must be overturned.

    The problem now is the damage being so devastating, and the government’s reach so broad, unconstitutional, tyrannical and politicized, Americans have no rights to anything expressly enshrined in the Bill of Rights. What good an Amendment now?

  2. Avatar for task task says:

    I could, but won’t at this time, detail the immense damage the FDR rouge court did with what we all know is possible with any piece of legislation… the unintended consequences. You see it now played out in the NY courtrooms! What we have here is unintended consequences of arguing with original intent. The simple wording of the Commerce Clause was never supposed to undermine the Constitution that was ratified to protect individual God given Natural Rights by usurping the right to “pursue happiness” which everyone knows is the right to pursue property. What is that right also about? It is about competitively using property economically as long as it does not create a negative right for others doing the same thing. This is why these fools are attempting to use the Insurrection language of the 14th Amendment just as inappropriately. They get away with it!

    The Founders were afraid attempts to destroy liberty would occur. It is why they ratified the Bill of Rights one year later. Tell me what part of those rights, besides the Third Amendment, has the Biden Administration not run rough shod over?

  3. Over the past 30 years, what puzzles me most is the SCOTUS ignorance, deliberate omission of the express words of the Ninth and Tenth Amendments. Apparently, justice eludes the justices!

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