National Constitution Center: “Constitution Says Obama Can Ban Trans Fats”


This “article” comes from Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy. It predictably does not quote any part of the actual Constitution, despite a header that says, “We Checked the Constitution, And.”

This is what liberal constitutional literacy looks like.

Lyle briefly namechecks the Tenth Amendment, then goes on to recite the usual Supreme Court cases, treating them as a substitute for the Constitution.

That also is a depressing look at what liberal ideas of the Constitution look like.


Perhaps the most basic function of government – and thus a primary aspiration of a constitution that creates a government – is to keep the people safe.  This is what lawyers and judges call the exercise of “the police power” – usually defined as the authority to protect “public health, safety and morals.”

Here’s the actual text of the Preamble to the Constitution.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

It does not say anything about keeping people “safe” from public health problems. Let alone morals. The basic function of Federal government is interstate relations and national defense… as well as the avoidance of tyranny.

But Lyle isn’t talking about the actual Constitution, but “a primary aspiration of a constitution that creates a government”, which is to say constitutions in general. Like the ones in Europe.

As the quotation above from an editor of a free-market advocacy magazine shows, there are those who believe that the government’s role should be no more than to require labeling of food ingredients, and then leave it to private choice whether to buy and eat the product.

The Food and Drug Administration has already heard that argument, and it has a two-part answer. First, it has been requiring labeling of foods with trans fat ingredients for nearly seven years and yet consumers keep buying the products in significant quantities. And second, there is new scientific evidence showing that there is simply no safe minimum amount of trans fat in any food product, so the only way to ease the very real threat of heart disease is to ban the ingredient altogether.

Take a look at that first argument. You’ll rarely see liberal totalitarianism this naked.

The FDA would have been prepared not to ban trans fat foods if people have obeyed the warnings. But since they disobeyed the warnings, it has to ban it.

The answer is that the FDA can’t let people choose because they don’t make the right choices. People can only choose if they make the choices that government wants them to.

Constitution? It was nice while it lasted. Here’s a quote from an earlier document that made the Constitution possible.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Consent of the governed? Inalienable rights? Liberty? Pursuit of happiness? Creator? Who was the right-wing extremist who wrote this stuff?

As good liberals we know that…

1. Everyone is unequal due to race and class and it is the burden of government to redistribute that inequality

2. That there is no Creator, only government, and the rights it allows can always be taken away

3. Life, liberty and happiness can only exist as government defines them

4. Governments don’t derive their powers from men. They derive their powers from the Greater Good.

Anyway back to trans-fats, which like most fatty foods, are unhealthy, not immediate killers. But have to be banned, because government…

In a lengthy document spelling out why it is proposing the ban, though, the FDA does not mention its constitutional authority to do so.   But that is hardly a surprise:

Sure, why would it…

The federal government has been acting to stop the flow into the market of “adulterated” foods since 1906, and the Supreme Court as long ago as 1911 ruled that this was within Congress’s power under the Constitution’s regulation-of-interstate-commerce provision in Article I.

Ah good old Article I. It’s Section 8, but the National Constitution Center doesn’t bother citing it that explicitly because who really cares… it’s not like Constitutional literacy means knowing what it says

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

There it is. In black and white.

The FDA, an agency which none of the Founders ever intended should exist, has the power to ban trans-fats because Congress has the power to regulate international, tribal and interstate commerce.

So… if you are a restaurant and you make your own foods and sell them locally without ever shipping out of state, can you still do that?

Right. Because the power of interstate commerce has somehow become the power to ban everything regardless of whether it ever crosses state lines. And yes there’s a string of Supreme Court rulings backing that up.

Do those rulings have anything to do with the actual Constitution? As much as the National Constitution Center has to do with the Constitution.

  • Softly Bob

    Trans fats are not just man made, they are also found naturally in very small amounts in dairy produce, but because (according to the Food and Drug Administration) there is no minimum safe amount, what they are really saying is that milk, butter, cheese and yoghurt should be banned!

    • .

      Interesting fact about dairy (I did not know). Given the logic of the FDA, that is where they have to go. They have to ban natural dairy products.

      Oh. Lordy. Lordy, Lordy! How did our ancestor survive!

    • pupsncats

      We know it isn’t about our health or safety but a necessary function of an administrative state which, in order to justify its existence and increase the power of the federal government and its control over every aspect of human life, must exhibit its police powers.

      Life, liberty and the pursuit of happiness are controlled by what the government determines to be in the interests of the government, not the people.

    • Ide-Clair

      The trace trans fat that occurs naturally in some foods like beef and dairy are natural trans fat and could actually be beneficial compared to hydrogenated vegetable shortening trans fats, So the government isn’t interested in banning foods with natural trans fat. It’s only interested in banning artificially created trans fat that is harmful and completely unnecessary to the enjoyment of foods.

  • ted

    “Perhaps the most basic function of government – … – is to keep the people safe. ”

    We will keep you safe from hangnails.
    We will keep you safe from overeating.
    We will keep you safe from extreme sports.

    But keeping you safe from rogue regimes, stater sponsor of terror, … not so much.

  • Jason

    Aside from the abhorrent attempt to curtail personal liberty by banning transfat from food, there is a simple issue that these idiots seem to all miss. Fat is not bad, what is bad is sugar. Too much sugar is what causes obesity, not fat. Fat can actually be beneficial in small quantities. I would have thought that the FDA would know that, but then again what can you expect from a bureaucracy that way oversteps its bounds quite regularly? I dont know what pisses me off more, the nannystatism that treats everyone like 3 year olds instead of adults, or the fact that THEY CANT GET THE BLOODY FOOD RIGHT! Idiots, all idiots.

    • Enkouyami

      To say that fat is not bad and what is bad is sugar and that too much sugar is what causes obesity, not fat is just plain ridiculous. Sugar and fat aren’t inherently bad; what is bad is consuming too much of them. Also why do you think consuming fats does not make makes one’s fat fat levels increase?

      In the case of trans fats it’s pretty bad because any amount will decrease your good cholesterol (HDL) and increase your bad cholesterol (LDL) at same time.

  • tagalog

    The Constitution says NOTHING whatever about the federal government having any police powers. The closest it comes in in the Preamble, when it says that the Constitution is being written “to provide for the general Welfare.” That clause has long since been interpreted by the U.S. Supreme Court NOT to delegate police powers to the federal government. Accordingly, the federal government’s assumption of police powers is a-constitutional if not UNconstitutional.

    The federal government, over time, has accumulated some police powers, but it is not doing so Constitutionally. Police powers properly belong to the states, which are closer to the people. We should be scrupulous to take away all police powers that the federal government has quietly assumed.

    Nothing in the Constitution gives the feds the power to regulate food. Congress can regulate interstate commerce in food, but not what we eat.

  • I.m. Strandedinsonoma

    Gov’t has exactly five jobs. Protect the rights of the people. Protect private property. Ensure the continued and unfettered action of interstate commerce. Protect our overseas trade. Protect the country.

    If it doesn’t fall within one of those headings, it is unconstitutional. Period! (Right, Mr. Constitutional Scholar Barry?)

  • pupsncats

    The U.S. government and the courts long ago abandoned the true meaning of the Constitution. Its just more obvious when Progressives are in control.

    A recent article by John Marini, Visiting Distinguished Fellow at Hillsdale College, summed it up this way:

    “The Great Society marked the beginning of an expansion of the federal government and a centralization of political and administrative power in Washington that had long been the domain of local and state governments. In addition to destroying the fabric of federalism, this centralization had the effect of undermining the separation of powers, making it difficult if not impossible for Congress, the president, and the bureaucracy to function amicably in pursuit of a national interest.

    What we have seen in subsequent decades is the steady expansion of a modern administrative state.

    In America, the administrative state traces its origins to the Progressive movement. Inspired by the theories of the German political philosopher Georg Hagel, Progressives like Woodrow Wilson believed that the erection of the modern state marked an “end of History,” a point at which there is no longer any need for conflict over fundamental principles. Politics at this point would way to administration, and administration becomes the domain not of partisans, but of neutral and highly-trained experts.”

    Obama has taken this concept further than any other liberal president. He appoints czars and approves of legislation that give broad and unprecedented authority to agency heads and unelected bureaucrats (like IPAB in Obamacare), the “exdperts” to determine policies and regulations for every American.

  • Ide-Clair

    Trans fats are a type of unsaturated fat which is uncommon in nature but can be created artificially. Consumption of trans fats increases the risk of coronary heart diseas

    The trace trans fat that occurs naturally in some foods like beef and dairy are natural trans fat and could actually be beneficial compared to hydrogenated vegetable shortening trans fats, So the government isn’t interested in banning foods with natural trans fat. It’s only interested in banning artificially created trans fat that is harmful and completely unnecessary to the enjoyment of foods..

    Take a look at the ingredients in your kitchen. I did. Nothing contains trans fat, which means foods like brownie mix, microwave popcorn, cheez wiz in a can, crackers taste delicious without trans fat. If it was further removed from foods that only have it added as a preservative, foods would be a little healthier and there’d be no difference in taste…only our arteries would know the difference.
    Fast food places have already removed trans fats from their foods and so have many restaurants. Those that haven’t do so out of convenience to them at the health risk of their consumers.
    This isn’t about telling us what we can eat. It’s about removing a deadly and completely unnecessary additive FROM foods we eat.

  • Veracious_one

    It ”s all about control….