Let’s talk about fundamental rights and the right to food.
A fundamental right is a right that is so important that the government can’t infringe upon it without proving that doing so is necessary, and its infringement narrowly tailored to achieve a compelling state interest.
Some fundamental rights are stated or clearly implied in the Constitution or Bill of Rights. Others are implied under the equal protection clause of the Fourteenth Amendment. Since the right to food isn’t stated or clearly implied in the Constitution or the Bill of Rights, we look at how the courts have interpreted the Fourteenth Amendment.
There are several tests of implied rights under the Fourteenth Amendments.
Is the right “fundamental to the very existence and survival of the race?”1 Is the right “so rooted in the tradition and conscience of our people as to be ranked fundamental?”2 Has the Supreme Court identified or suggested it or a similar right?
“[F]reedom of personal choice in matters of family life is a [protected] fundamental liberty interest.”3 This right denotes the “right of the individual to . . . generally . . . enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”4 Controlling the raising of one’s children is a fundamental right.5 And there is a right to make choices concerning one’s own health. In fact, “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.”6
The rights to privacy7 and to bodily integrity8 are also fundamental rights.
But some governmental entities see the right to food as not being a fundamental right, hence our concern and the need for this amendment.
For example, The United States Department of Health and Human Services testified that “[t]here is no absolute right to consume or feed children any particular food,” arguing that there “is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds.” They also testified that “[t]here is no generalized right to bodily and physical health.”9
Above mere sustenance, people consume food for a variety of reasons: as a part of religious practice or ceremony; as a means of communion with friends, family, or the community; as a means of self-expression or cultural expression; a conscious decision to exercise control over one’s health; and as political speech. All these are protected fundamental rights.
We need to guard against governmental overreach, preferably by clearly constitutionally codifying, as a fundamental right, that every individual has a right to the food of his or her choosing.
1Skinner v. Oklahoma
2Snyder v. Massachusetts; Moore v. City of Cleveland, Ohio
3Santosky v. Kramer
4Loving v. Virginia
5Meyer v. Nebraska; Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary; Troxel v. Granville
6Cruzan v. Director, Missouri Department of Health
7Lawrence v. Texas; Roe v. Wade; Griswold v. Connecticut
8Rochin v. California
9Farm-To-Consumer Legal Defense Fund, et al. v. Sebelius. Brief filed by Stephanie M. Rose for Kathleen Sibelius, Secretary, United States department of Health and Human Services.