National Constitution Center: "Constitution Says Obama Can Ban Trans Fats"

This is what liberal constitutional literacy looks like.


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.

Tags: FDA