5/09/2008
Gordon Ramsay gets too excited
I see that Gordon Ramsay has proposed banning out of season ingredients in restaurants. I can't take such an effort all too seriously - I'd especially love to be in on the committee that gets to decide which restaurants have to abide by the "law", or when seasons start, or what to do with frozen vegetables, or what people are supposed to eat in places where they only get potatoes - but it sparks the question in my mind as to whether there is any, or whether there should be any, constitutional limit on how much the government can regulate cooking. Isn't cooking an expressive outlet? What if New York city banned cooking with butter in a commercial kitchen? Or banned Romanian food?
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4 comments:
Ramsay refers only to restaurants, which cook for money. Economic activity can be restricted much more easily under the Constitution than non-economic activity (see Williamson v. Lee Optical). Banning unseasonal home cooking might be more difficult, though the easy way around that is to go further back in the supply chain: Congress can use interstate commerce clause and foreign trade powers to block the movement of food.
I cannot comment from a regulatory point of view but I completely understand where he is coming from. I mean, there are rules for when someone can hunt right? In Europe, certain fish cannot be caught out of season, etc. The same should apply to produce. Why not?
PG - You're obviously right under the caselaw as it stands, but what I'm wondering is (a) whether the caselaw should be as it is and (b) whether there might not be some limit where even the extraordinarily broad discretion of the government to regulate runs out in the face of a substantive due process privacy interest.
Aran - I'm sympathetic to Ramsay's point too - may we all live in a world where you only eat seasonally. But it's not realistic for the reasons I noted. As for the way fish are regulated, I thought that was to make sure there were fish next year. I'm not sure you can make a similar argument about wheat (I guess the equivalent would be when crops were allowed to lay fallow every 3 years - banning planting on the fallow fields was necessary to make sure people could eat later on).
It's difficult to argue privacy claims as challenges to economic regulations. I'm surprised, frankly, that conservatives have not attempted that line of attack on contraception and abortion -- "sure, you have a right to use it, but both the federal government and the states can regulate it economically." This is part of the underpinning of the 11th Circuit's sex toy decision: because Alabama law prohibits only commercial manufacture and trade in obscene devices, but not their ownership (or, presumably, home-grown versions given away for free), the law withstands sexual privacy challenge. You can own sex toys, you just can't buy and sell them within Alabama.
I suppose you could attempt a substantive due process privacy claim within the Doug Ginsburg reading of the 9th Amendment, in which whatever rights were unimpaired for Englishmen at the time of the Founding were assumed into the Constitution. Given the protectionist trade stance of England at that time (and against which Adam Smith wrote), however, I'm not sure you could find a good historical basis for the right to foreign, out-of-season foods. I think one can make a good argument for a style of cooking as being expressive, but not for a particular ingredient's being available year-round.
As for Aran's point, the fish regulation under the Constitution would be considered to have passed rational basis easily. A ban on trade in out-of-season produce could as well, on admittedly less pressing but nonetheless meaningful environmental grounds, such as the waste of fuel to transport the food.
As for the existing case law, certainly if you dump Williamson v. Lee Optical and Wickard v. Filburn, you could reduce the government's power of economic regulation tremendously. I think you need a few more Thomases for that, though.
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