David P. McGinley
The Washington Times
July 14, 2010

  • A d v e r t i s e m e n t
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Does Congress have the power to tell people what to eat? Maybe you think that’s a stupid question. Nonetheless, it was a question that Supreme Court nominee Elena Kagan was unwilling to answer. The question was posed to Ms. Kagan by Sen. Tom Coburn, Oklahoma Republican, during her Senate hearings. In trying to avoid answering the question, Ms. Kagan responded by saying, “Sounds like a dumb law,” but she did admit that just because a law might be dumb does not make it unconstitutional. And that was the extent of her answer.

So, can Congress tell us what we should eat? Well, back in 1942, the Supreme Court decided that, indeed, Congress basically can do just that. In the infamous case of Wickard v. Filburn, the U.S. government ordered the owner of a small farm in Ohio, Roscoe Filburn, to cease and desist growing wheat to feed his chickens. Filburn had no intention of selling the wheat, but, nonetheless, he was ordered to destroy it and pay a fine for having the temerity to think he could grow wheat for is own consumption without permission from the U.S. Congress.

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