Food Law


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Purpose of a Constitution

The role of constitutions within U.S. governments is to state the authorities -- as well as the limitations -- that "the people" have defined for their governments.


U.S. Constitution

  • The Constitution is the document in which "the people" describe the processes by which we will interact with one another. The Constitution also is the document in which we state (agree) that we will accomplish some of our interactions through a government (see the Preamble to the U.S. Constitution).
    • We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
    • Note the six "objectives" stated in the Preamble.


  • Every aspect of our legal system and government must be consistent with the Constitution.
    • The U.S. Constitution is the supreme legal authority in our nation -- all statutes, regulations and court decisions at the federal, state and local government levels must be consistent with (cannot conflict with) the U.S. Constitution.
    • The government cannot enact any law or take any action that conflicts with the authorities and responsibilities the people have granted to the government. These authorities and responsibilities are delineated in the Constitution.
      • The U.S. federal government can address only the issues specified in the U.S. Constitution (see U.S. Const. Art. 1, Sec. 8), but these authorities have been broadly interpreted.
        • Congress relies on the Interstate Commerce clause (i.e., "The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes...") for its authority to regulate food in the United States.
      • The U.S. Constitution (10th Amendment) states that state governments are authorized to address any topic that a government in the United States can address, except those authorities that are limited to only the federal government.
        • Government has the authority to regulate food and there is no provision which restricts that authority to the federal government; therefore state governments have the authority to regulate food within their state.


  • The U.S. Constitution and state constitutions belong to the people; for example, a constitution can be amended only by the people. It cannot be amended by Congress.
    • The U.S. Constitution is changed (amended) only with the approval of the states.
      • A constitutional amendment is proposed by either Congress or 2/3 of the state legislatures.
      • An amendment is approved by either 3/4 of the state legislatures or state conventions called for the purpose of considering the proposed amendment.
      • See Article V of the Constitution.
    • States specify the process for amending their state constitution.
      • In North Dakota (and many other states), voters have reserved the right to directly vote on law; see North Dakota Constitution, Article III, Section 1:
      • "the people reserve the power to ... propose and adopt constitutional amendments by the initiative"
      • An initiative involves citizens circulating petitions for voters to sign indicating that they want the proposed amendment placed on the ballot of the next election, and thereby allowing citizens to vote on whether to amend the state constitution.


  • The Constitution delineates the authorities/powers that have been granted (by the people) to government. The Constitution also states what the people prohibit the government from doing.
  • For example, the Constitution specifies the rights held by society through government
    • Example (as stated before) -- "The Congress shall have power to ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes" Article 1, section 8.
    • The assumption is that legal rights are held by individuals unless we have agreed that they should be held collectively, and we use government to administer the rights we want collectively held.


  • The Constitution also specifies limits on government
    • Example -- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" Amendment I.
      • Note: this amendment prohibits government from establishing a religion, but it does not prohibit citizens from using their values -- including their religious values -- to shape personal ideas that can then be presented to elected officials as they shape public policy.
    • Example -- "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" Amendment V.
      • The opportunity to conduct a business -- such as a food business -- is embedded in the concepts of "life, liberty, or property."  A regulation that unreasonably interferes with the operation of a food business, for example, would be considered a violation of the 5th Amendment, unconstitutional and unenforceable.
      • Defining the line between what government can do to regulate commerce and what government cannot do because it is "a taking of property" is very difficult for legislators, judges, and other legal scholars.  You are likely to encounter the difficulty of this distinction throughout your career and lifetime.


  • Ideally, government acts on behalf of society.  This is consistent with the idea that law reflects society's values. Our government is not "they;" it is "we" acting collectively.


  • The Constitution establishes procedures for resolving disputes among individuals (i.e., the judicial system).


  • The Constitution establishes three branches of government (as discussed on the following pages):
    • Legislative -- Congress (legislature at the state level),
    • Executive -- President and agencies (governor at the state level), and
    • Judicial -- trial and appellate courts.

Closing Thought

The constitution documents 1) that we will perform some activities collectively through government (such as provide roads and oversee the safety of our food), 2) the authorities we have given our government, and 3) the fundamental structure of our government (i.e., the three branches).

  • Repeat -- Defining the line between what government can do to "regulate commerce" and what government cannot do because it is a "taking of property" is very difficult for legislators, judges, and other legal scholars.  You are likely to encounter the difficulty of this distinction throughout your career and lifetime.




This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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