Monte Kuligowski
Happy Meals and constitutional liberty
By Monte Kuligowski
November 10, 2010

I can almost hear the bristly voice of Burgermeister Meisterburger, "I hate toys and toys hate me," from the 1970 Christmas animation. It's not necessarily that the San Francisco council members hate toys; they just feel the need to conform restaurants and parents to their lifestyle ideology.

Nevertheless, with the advent of the toy-less Happy Meal in San Francisco via the recent 8-to-3 Board of Supervisors vote, kids are sure to hate the Puritanical Eight.

Not many within the streets of San Francisco are overly excited with the city's new law. The CBS News' Health Blog refers to the Board of Supervisors as the "food Grinch." Carla Fried writes that many "parents don't seem exactly thrilled with government stepping in and trying to do their job. Cries of 'nanny state' and 'leave the parenting to the parents' dominate the comments to the Happy Meals ban report at the San Francisco Chronicle's website." The results of an Internet poll on the Health Blog reveal that 75% of respondents believe San Francisco is overstepping its boundaries.

Everyone, it seems, has commented on the new ordinance with conversations centering on the craziness of the law and of San Franciscans in general. But, for lovers of Constitutional liberty, the merit of the ban is the wrong focus.

The San Francisco Happy Meal regulation offers a teachable moment on the role of our constitutional system.

Unless we live in San Francisco, our opinions on the law are irrelevant. And so are the opinions of federal judges. Under our federalism system of government, the localities are supposed to be free to govern themselves in all affairs of ordinary life. The city of San Francisco could literally take the Meisterburger's lead and ban all toys within city limits and the federal government would have no jurisdiction to overturn the ban. It is up to the residents of San Fran to elect council members to change the law; if they don't like it.

It turns out that it's much easier to repeal law at the local level. Once the feds make a national law or a pronouncement for all localities it becomes one size fits all across the country; and its repeal becomes a federal issue.

That's one reason why Thomas Jefferson wrote in his autobiography that:

It is not by the consolidation or concentration of powers, but by their distribution that good government is effected. Were not this great country already divided into States, that division must be made that each might do for itself what concerns itself directly and what it can so much better do than a distant authority. Every state again is divided into counties, each to take care of what lies within its local bounds; each county again into townships or wards, to manage minuter details . . . It is by this partition of cares descending in gradation from general to particular that the mass of human affairs may be best managed for the good and prosperity of all.

Unfortunately, we have become conditioned to look to the federal government for help concerning various grievances. And the federal government's illicit assumption of jurisdiction over local affairs in the name of constitutional rights has made the dependence unavoidable.

As such, the Center for Science in the Public Interest is reportedly preparing to run to the federal courts seeking national injunctive relief against McDonald's. "McDonald's use of toys undercuts parental authority and exploits young children's developmental immaturity — all this to induce children to prefer foods that may harm their health. It's a creepy and predatory practice that warrants an injunction," says Stephen Gardner of the CSPI."

Well, if we were to ever get back to the actual Constitution, CSPI's only recourse would be to take their argument to the marketplace of ideas. CSPI would have to convince the individual city council members or state legislators across the country that banning toys in kids' meals makes sense for each particular locality.

If we were to get back to the actual Constitution we would find that the Bill of Rights grants individual rights by preventing the federal government from passing liberty-killing laws. The only legitimate federal rights guaranteed to individuals involving the localities and states are found in specific constitutional amendments (and any enforcement legislation authorized by the relevant amendment). For example, the Civil War Amendments (13th, 14th and 15th) protect the posterity of the former slaves from oppressive laws of the states while ensuring equality under law. The 19th Amendment (1920) states that no state may deny women the right to vote and the 26th Amendment prevents the states from denying citizens 18 and over the right to vote.

We must observe that the 14th Amendment (1868), which has been used in recent decades to broadly expand federal power, did not provide women with the right to vote; it took a specific amendment to do so. Under current federal jurisprudence, however, the 19th would be wholly unnecessary; for the U.S. Supreme Court could simply use its discretion to expand the principles of the 14th to a class of persons outside of its specific context and purpose.

Amending the Constitution is an expression of popular sovereignty and to stretch an amendment's meaning beyond its context and structure is a crime against the people. If we actually need a specific federal power that has not been delegated by the Constitution we have a remedy: the amendment process. And, as with the 18th Amendment, if it turns out that an amendment was a bad idea it may be repealed. The amendment process protects the Constitution and the liberty of the people. Unfortunately, the U.S. Supreme Court has a bad habit of bypassing the process and "amending" the Constitution unilaterally at its discretion.

This is what Thomas Jefferson says on the subject:

[The Constitutional Convention delegates] constituted a general [federal] government for special purposes [and] delegated to that government certain definite powers and whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force. To this compact each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party. The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution the measure of its powers.

Sadly, Jefferson's warning has materialized and has been the rule for quite some time. The Constitution does not govern the feds; the feds use their discretion to manipulate the Constitution.

Until we get back to the Constitution, the right to impose a toy ban, a national healthcare mandate or whatever, is entirely up to the discretion of the federal government.

So, the next time we hear of some local, crackpot law we should remember that diversity is the result of our constitutional system. One-size-fits-all central planning is most often the result of tyranny.

© Monte Kuligowski


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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