The San Francisco Board of Supervisors have approved a ban on Happy Meals and other fast-food servings that fail to meet nutritional standards. While sympathetic to the motivations behind the legislation, I have serious questions over the constitutionality (and logic) of the ban.
For many years, advocates attempted to use tort law to curtail fast-food as a defective product or a nuisance. Like others, I was critical of the use of tort law in those cases. Now, there seems a push to simply try to outlaw such food. Yet, it is hard to see how they can satisfy even the rational basis test under constitutional law. After all, other low nutrition food will be available in a city famous for its Ghirardelli’s chocolate. They are simply targeting those chains which give away toys.
Moreover, this denies parents the ultimate say as to what their children eat. Parents may impose a perfectly healthy diet on their children but allow them to eat at McDonald’s once a week or once a month. This is the ultimate expression of patneralistic legislation — taking such decisions from parents. Companies could challenge the law under equal protection, due process, and other constitutional claims.
The government can certainly demand the posting of nutritional information and campaign against such low nutrition foods. It can certainly ban such food from school cafeterias, but this is one bill (in my view) that would not pass constitutional mustard . . . I mean muster.
Jonathan Turley
Source: CNN
James M:
what do you think our founders were doing when they came up with our Constitution? They were taking abstract principles/ideas and applying them to self government.
I don’t know anything about Kant but I do know most of our founders were well educated men and relied heavily on abstract thought as well as concrete examples to come up with our system of government.
Bob Esq is trying to explain to you that the law is first based in abstract ideas as to how men should treat other men. Thus his mentioning of Kant and Locke. The quotes I made above and the one quote that Bob Esq made could be used to govern a society.
James M:
Murder is not a right, nor is stealing. Therefor they cannot be considered when defining freedom.
So you think the basic right of property ownership is on par with murder?
Please explain how you come to that conclusion.
BBB,
http://jonathanturley.org/2010/11/12/san-francisco-bans-happy-meals-and-other-fast-food-meals-served-with-toys/#comment-174326
Like I said “in my experience” is a poor rebuttal to a study. I agree with part of what you said, particularly the last sentence, I’d just like to see if you have anything other than your experience to justify thinking the study results are flawed.
Bob,Esq.,
I look to the Constitution to determine the limits on governmental power, not Kant. I would be interested what Kant said in an abstract discussion about the proper limits of government, or about whether we should amend the constitution in some structural way. It has no weight in a discussion about the legality of a governmental action.
Bob Esq:
“N.B. Citizen of; not Property of.”
Damn straight.
Lurker,
My point was that you are engaging in line drawing about when restrictions on unfettered freedom are needed (murder, property ownership), and when they are tyrannical. Quoting John Locke doesn’t change that fact. But by claiming that all restrictions on freedom are tyranny, you were bypassing the whole discussion about whether bans on advertising for unhealthy products are a good restriction or a bad one.
Also, I am not in favor of the government controlling what is available for sale — I think that that would be a step towards tyranny. I don’t think you can honestly say the same for restrictions on advertising for foods with too many calories, and too much fat, salt, and cholesterol.
Lurker: “Every man has a property in his own person. This nobody has a right to, but himself.”
Lest we forget that “as usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
What folks like James M. conveniently forget is that the only thing keeping this social compact from becoming purely illusory is the distinction between usurpation and tyranny.
While I’ve been accused of being ‘silly’ by bringing up Kant’s distinction between Duties of Virtue and Duties of Right, it just so happens that his analysis adequately describes the line where the State may exercise power and where it is prohibited from doing so.
To put it in quick property law form, Duties of Virtue are the essential sticks in the bundle of self-ownership rights (see Kaiser v. Aetna) that cannot be compelled by external legislation without the state engaging in tyranny per se.
N.B. Citizen of; not Property of.
James M:
All mankind… being all equal and independent, no one ought to harm another in his life, health, liberty or possessions.
John Locke
Every man has a property in his own person. This nobody has a right to, but himself.
John Locke
Where does it stop? There are many products that are unhealthy. People have responsibility for what they put into their bodies.
Your assumption is that our bodies do not belong to us so government has a “right”/”duty” to limit and control what we eat. I imagine you are for the right to die? If you are, why the dichotomy/contradiction?
Clarification: While an Amendment or another Obama appointee to SCOTUS would do the trick, there is nothing to stop congress from exercising its law making power in crafting legislation that would level the political playing field in such a way as to avoid another conflict with SCOTUS.
Example: A new law restricting the use of the legal fiction of corporate person-hood in matters relating to the electorate.
To all lawyers who contribute to this thread (blog):
Last evening during a quiet time I was thinking of something BBB posted to lurker:
“BBB
1, November 16, 2010 at 10:30 pm
Lurker,
While everyone is entitled to form their own opinion of others, I think you are arrived at a rather extreme conclusion based on extremely limited evidence.
You would not be the first to rush to judgment after seeing what someone writes on a blog. However, it has been my experience, that most people who take the time to share their thoughts do so because they care for their fellow citizens. This becomes even more evident when you consider that they are doing so for free.”
I’m going to take a moment as a non-lawyer who has been reading your individual posts for over a year to thank each of you for the free education.
Even when you disagree with each other and call each other names, the give and take is priceless and leads anyone, especially me, to think deeply about the subject and your individual words, premises, opinions, etc.
This is a simple and sincere thank you … now have back at it.
BBB: “I’m tired of seeing that “golden rule” (the one where he who has the most gold makes the rules) prevail. Every citizen, of voting age, should have the same ability to influence our future.”
I agree absolutely; however I fail to comprehend why you think you need a constitutional amendment to achieve that end.
Simple legislation would suffice to put things back where they were since the mid 1940’s.
Lurker,
No, I don’t. Why is advertising unhealthy products not a right? See my point?
Buddha Is Laughing
1, November 17, 2010 at 9:25 am
Except for that brief time in the 70′s where I had Rosie Greir’s head sewn onto my shoulder.
=======================================================
Rosie Grier was a good friend of my father’s … he was constantly visiting us … thus a nostalgic moment just occurred for me.
The original Fearsome Foursome’s Ernie Ladd introduced him to the family … you want to talk huge … Ladd was the biggest football player I ever met. My parents bought a special chair just for him.
There were certain players we (the kids) were not allowed to be around but Mr. Ladd and Mr. Grier were always mindful of a child’s presence.
Thanks for the moment, Buddha, … sorry for going off topic
James:
“Also, the restriction on murder does restrict freedom. It’s just a good restriction.”
no, the restriction on murder does not limit freedom. The restriction on murder limits murder. Murder is not a right.
Why is murder not a right? Why is stealing not a right?
See my point?
James M.,
Yes. I am suggesting a constitutional amendment. As I stated earlier, I think Citizens United was correctly decided. That would mean that the current law protects that form of corporate speech. Given that interpretation of the First Amendment, the only possible method of correction would be by amendment.
BBB,
Forgive me if this comes across wrong, but are you sure you know what the holding of Citizens United is? Or are you talking about passing a constitutional amendment? It sounded to me like the type of law you’re describing is unconstitutional under Citizens United.
Lurker,
As I stated earlier, I agree with the holding in Citizens United, but I think our laws need to be changed in order to level the playing field. Political speech by corporations, just like trade unions, is so powerful that it has the effect of silencing the individual (or at least giving them twice the voice).
Corporate profit should not be permitted to influence lawmakers anymore than union dues. It should be spent to improve the future of the corporation or union, or it should be divided among the shareholders and union members, at which time they (within established limits) can use it to fund a campaign (if they wish).
I’m tired of seeing that “golden rule” (the one where he who has the most gold makes the rules) prevail. Every citizen, of voting age, should have the same ability to influence our future.
Also, the restriction on murder does restrict freedom. It’s just a good restriction.
Lurker,
That’s why I was extremely surprised at your ridiculously universal statement.
James:
do you really think I think a restriction on murder is a bad idea or somehow restricts freedom? That is just silly.
As far as food safety goes, I am not so sure the FDA is up to the task.
Part of the problem is we have too many restrictions that are way beyond protecting people and cross over into limitations on personal actions. This happy meal thread is an example.