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How is this ruling constitutional? (Raw milk content)


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A WI judge has ruled that residents of WI "do not have a fundamental right to produce and consume foods of their choice."

 

This ruling has to do with owning a cow and drinking the milk from said cow.

 

From the ruling:

 

 

1) Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;

 

(2) Plaintiffs do not have a fundamental right to consume the milk from their own cow;

 

(3) Plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;

 

(4) The ------- PlaintiffsĂ¢â‚¬â„¢ private contract does not fall outside the scope of the StatesĂ¢â‚¬â„¢ police power;

 

(5) Plaintiffs do not have a fundamental right to produce and consume the foods of their choice;

 

What is going on here? I can't honestly think of another country in which the residents can't milk their own cow or goat, eat the eggs from their chickens, etc, and share it with others. How is this ruling even remotely constitutional?

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What is going on here? I can't honestly think of another country in which the residents can't milk their own cow or goat, eat the eggs from their chickens, etc, and share it with others. How is this ruling even remotely constitutional?

 

I'm not sure what is going on...but I can't imagine that the ruling will be upheld.

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Yeah me, too. Honestly I am not much of a conspiracy or political person....but this stuff is getting ridiculous. this is why we are having problems. Our government is ours. We need to knock down all the salaries of political creatures. I am so tired of other people "protecting" us from ourselves.

 

And, I don't drink milk;)

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It seems the judge in this case felt the arrangement of "ownership" of the cows was an attempt to evade state regulation of the dairy industry, and was in effect subterfuge.

 

This was not a case of an individual family keeping and milking their own cows, but a commercial dairy farm keeping and milking the cows with "ownership" distributed to the consumer.

 

Personally I think people should be able to consume raw milk if that is their desire. But I think this case is more complex than it appears on its surface.

 

Bill

Edited by Spy Car
Due to a shocking number of typos
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I mean, based on such wording, we probably shouldn't be eating the harvest from our personal gardens, either. Oh, wait - I guess in some areas gardens are already outlawed depending on where they are placed (remember the lady in MI?).

 

I'm so disgusted!

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It seems the judge felt the in this case felt the arrangement of "ownership" of the cows was an attempt to evade state regulation of the dairy industry, and was in effect subterfuge.

 

This was not a case of an individual family keeping an milking their own cows, but a commercial dairy farm keeping and milking the cows with "ownership" distributed to the consumer.

 

Personally I think people should be able to consume raw milk it that is their desire. But I think this case is more complex that it appears on its surface.

 

Bill

 

I appreciate your voice of reason and your willingness to delve into analytical detail.

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I agree with Bill- I think this is a case that is more complicated than it looks.

 

We live 20 miles from Wisconsin and the folks around me who buy raw milk 'buy' a share of the cow. They have no contract, no involvement with the care of the animal, and when they stop buying the milk, they receive no money back.

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It seems the judge felt the in this case felt the arrangement of "ownership" of the cows was an attempt to evade state regulation of the dairy industry, and was in effect subterfuge.

 

This was not a case of an individual family keeping an milking their own cows, but a commercial dairy farm keeping and milking the cows with "ownership" distributed to the consumer.

 

Personally I think people should be able to consume raw milk it that is their desire. But I think this case is more complex that it appears on its surface.

 

Bill

 

Yes...and since raw milk sales are illegal in WI, some farmers allow people to purchase cows (or shares in their farm) and those people will then be able to have access to the milk the cow produces. They do it this way to avoid breaking the current laws. For instance, if my parents owned 20 cows (which they don't - just being hypothetical) and sold milk for commercial production, and I boarded one cow there myself, based on this ruling, I would not be able to drink that cow's milk. And based on the wording of the ruling, this judge is saying residents do not have the right to produce and consume - that, more than anything, stuns me.

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Yes, this is to try and restrict people from share programs so they can buy raw milk legally.

 

But it is still silly. It sounds like under these conditions even the farmer couldn't consume the milk.

 

And it would apply to other products, in many places they have tried to restrict egg production on a small scale.

 

Mostly what this is about is big agriculture wanting to make sure small local producers can't compete.

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Yes, this is to try and restrict people from share programs so they can buy raw milk legally.

 

But it is still silly. It sounds like under these conditions even the farmer couldn't consume the milk.

 

And it would apply to other products, in many places they have tried to restrict egg production on a small scale.

 

Mostly what this is about is big agriculture wanting to make sure small local producers can't compete.

 

:iagree: You and I think alike!

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I think that their arguments aren't following logically, as was pointed out in the link. But I'm guessing that if they had these cows on their own property and wanted to drink the milk raw, that no one would have any objections. What it sounds like they're doing is boarding the cows at a dairy farm and then wanting to get the milk from there and distribute this raw milk to others. I'm guessing that that's where the state can step in. It may be that this farm is using only minimal sanitary procedures as the rest of the milk from the farm will be pasteurized, and therefore safe from bacterial and all. I'm not up on raw milk, but I would think that farms which produce and distribute raw milk would have added sanitizing procedures to make sure that there was no way for bacteria to enter the milk, etc.. It may even involve bringing the milk down to a certain temperature within a certain time frame to discourage the growth of bacteria.

 

To me, if they really think they're in the right, they might want to find some precedents which directly relate to what they're trying to do rather than tie it in obscurely with other "rights". JMO

 

But yes, I think they should be able to drink raw milk if they choose. But if I were buying the raw milk from them, I'd want to know that it was safe to drink. Kwim?

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Yes...and since raw milk sales are illegal in WI, some farmers allow people to purchase cows (or shares in their farm) and those people will then be able to have access to the milk the cow produces.

Lucky! In Washington state, the law is written is such a way that cow shares aren't even a viable option. (They're legal, but only through a state-certified dairy, which is what pretty much prohibits the small-farm producer -- too much cost and regulation to be certified).

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Yes, this is to try and restrict people from share programs so they can buy raw milk legally.

 

But it is still silly. It sounds like under these conditions even the farmer couldn't consume the milk.

 

And it would apply to other products, in many places they have tried to restrict egg production on a small scale.

 

Mostly what this is about is big agriculture wanting to make sure small local producers can't compete.

 

:iagree:

 

I've seen this around quite a bit recently. People should be able to eat and drink what they please. But big agriculture is afraid of that idea.

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Yes...and since raw milk sales are illegal in WI, some farmers allow people to purchase cows (or shares in their farm) and those people will then be able to have access to the milk the cow produces. They do it this way to avoid breaking the current laws. For instance, if my parents owned 20 cows (which they don't - just being hypothetical) and sold milk for commercial production, and I boarded one cow there myself, based on this ruling, I would not be able to drink that cow's milk. And based on the wording of the ruling, this judge is saying residents do not have the right to produce and consume - that, more than anything, stuns me.

 

What I think they are trying to prevent (rightly or wrongly) is a situation where a commercial dairy farm (which are not allowed to produce and sell raw milk to the public in WI) tries to evade the state regulations by having consumers "own" a cow, either in whole or in a "share", with the intent of circumventing the prohibition on commercial dairies producing and selling (and promoting) raw milk.

 

I don't agree with blanket restrictions on raw milk, while I would still maintain that the state does have an interest in public health and having reasonable health standards, I just don't think the issue is as simple as it seems. The restrictions are on commercial dairy operations.

 

Some of the language in the judge's decision strikes me as overly broad and unnecessarily restrictive on the issue of fundamental rights. I think in that respect it is bad jurisprudence. He could have ruled far more narrowly.

 

Bill

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Some of the language in the judge's decision strikes me as overly broad and unnecessarily restrictive on the issue of fundamental rights. I think in that respect it is bad jurisprudence. He could have ruled far more narrowly.

 

Bill

 

This is my main problem with it and why I think it should be overturned.

 

But I also feel if people want to drink raw milk, let them. Make them sign a waiver, if necessary, in order to be certain they are aware of the risks, but that's as far as I would go.

 

To each our own.

 

Back to the original ruling, it's not right. It's too broad. It needs to be changed.

 

And if I wanted to drink raw milk (I don't), I wouldn't let any government stop me. I'm very much a Libertarian at heart. Some rules don't need to be obeyed IMO.

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I understand that one could question the actual "ownership" of the cow, when it comes to a cow share. But the ruling doesn't question the ownership at all. I accepts the ownership, but states there is no right to produce your own food.

 

The concluding paragraph makes it clear the plaintiff is the dairy farm, not the individual. On is basis I think there is a legitimate argument to be make that the State Leglislature had an interest in public health and passed legal restrictions on the sales of raw milk by commercial dairies (restrictions I would not favor) that the dairy in question was trying to evade via a "loophole."

 

The parts of the opinion on individuals not having to produce their own food were unnecessary, poorly considered, and almost certainly unconstitutional. It is an overall bad opinion.

 

Bill

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So where in the Constitution does it say that you have a right to own a cow? To produce your own food? The result may be wrong, but he is 100% correct on the Constitutional argument, which is all that he is saying.

 

The Constitional guarantees are acually rather limited, which is why it is all the more important to fiercely protect the ones we do have.

 

I don't agree with the result, either, don't get me wrong, but all the lack of Constitutional protection means is that the practice can be regulated. If it is a Constitutional right, the state's right to regulate is much more limited.

 

Terri

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So where in the Constitution does it say that you have a right to own a cow? To produce your own food? The result may be wrong, but he is 100% correct on the Constitutional argument, which is all that he is saying.

 

Terri

 

??? Last I read it I had the right to life, LIBERTY, and the PURSUIT of Happiness... The "individual" part of the ruling could hit two of the three.

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??? Last I read it I had the right to life, LIBERTY, and the PURSUIT of Happiness... The "individual" part of the ruling could hit two of the three.

 

Well, yes. And without food, we'd have no life.

 

I don't want the gov't telling me what I can and cannot eat. That is what this whole thing is about. And, as other pps have said, it's more about industry and politics than it is about the safety of someone drinking the stupid milk. I live here - the climate of the milk wars is volatile. At least one of these particular farm sells organic milk commercially - their farm is inspected regularly and often or they wouldn't be able to sell the milk in the first place. But again, that's not the point. The point is that this judge used some pretty bold words in his ruling - words that make me very, very uncomfortable with what the big G can and cannot do with regards to food.

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??? Last I read it I had the right to life, LIBERTY, and the PURSUIT of Happiness... The "individual" part of the ruling could hit two of the three.

 

Yep, and consuming or producing raw milk is no different than a number of other practices that are pretty heavily regulated:

1. Selling or using non-FDA approved drugs.

2. The developer who wants to build a tenement next door to you.

3. Going without health insurance.

4. Homeschooling!

5. Walking down the street naked.

6. Using recreational drugs.

7. Threatening your neighbors with bodily harm.

8. Operating a business without a license.

9. Practicing medicine without a license--full disclosure, notwithstanding.

10. Cutting hair without going to cosmetology school.

11. Reckless driving when no one is hurt.

12. The sale of alcohol, the operation of strip clubs, and prostitution.

 

Why is it okay to regulate these things, all of which are victimless offenses, and not the production and sale of raw milk? Liberty and the pursuit of happiness are not all they're cracked up to be.

 

Terri

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I find it appalling that we cannot buy and consume raw milk without having to jump through crazy hoops (if it is even allowed at all), when we have absolutely no say whatsoever in what is put into the foods that they are expecting us to buy. Did you know that many, many dairy farmers will dump chlorine bleach (straight, household bleach) into their holding tanks to lower their bacteria count? No one talks about that. My in-laws had a dairy farm and truthfully, I would not drink their milk. To my knowledge, they didn't use the bleach, but their cleaning practices were disgusting. And, what about the containment lots where these dairy cows are placed while waiting to be milked?

 

Also, we all know about the GM soybeans and corn. It is so incredibly difficult to find a food that does not have one (or both) of those two ingredients in it. Uhhh!! It makes me so mad!

 

I do enjoy drinking raw milk (and making butter) and have never had a bad experience at all. I don't appreciate that I am a half-step away from committing a crime.

 

Sorry, I could go on and on....

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So where in the Constitution does it say that you have a right to own a cow? To produce your own food? The result may be wrong, but he is 100% correct on the Constitutional argument, which is all that he is saying.

 

The Constitional guarantees are acually rather limited, which is why it is all the more important to fiercely protect the ones we do have.

 

I don't agree with the result, either, don't get me wrong, but all the lack of Constitutional protection means is that the practice can be regulated. If it is a Constitutional right, the state's right to regulate is much more limited.

 

Terri

 

Terri is correct. "Fundamental right" is a legal term of art. These are the rights that are so essential to our being that Courts will presume the law is unconstitutional and put the burden on the state to prove it is constitutional. The dairy farm made a motion to reconsider to the judge solely on the basis that they had a fundamental right to raise and consume whatever they want to eat or drink. The judge had to address that issue in the appeal.

 

We don't have a fundamental right to raise and consume whatever we want to eat or drink. I live on a postage stamp lot near an urban center, my city says that I need at least half an acre to raise chickens. I'd love to be able to collect eggs to feed my family, but I don't have a fundamental right to raise chickens. There would be an even bigger problem if I tried to house a cow in the shed at the back of our lot. I don't have the right to grow and consume my own marijuana unless I have a medical id card in California. I can't give home brewed beer to my own underaged kids. My county, my state and the Feds have a legitimate interest in regulating food. The Supreme Court has upheld the underpinnings of the judge's ruling since at least the 1930s.

 

It doesn't mean that people don't have the right to grow and consume their own food. It's just not a fundamental right and a government with a good reason (such as preventing illness) can regulate how I do it.

 

Christine

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How so?

 

Because the ruling emphasizes that they own a dairy farm. Spycar provides more on this context. Also, that they didn't do anything to really make the argument that they have a right to it; courts don't just assume people have a right not previously articulated in the law--it is the lawyers' job to establish it.

 

FWIW, I have no problem with people drinking raw milk from their own cow. I have a problem with people "boarding" a cow to get around food laws.

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So where in the Constitution does it say that you have a right to own a cow? To produce your own food? The result may be wrong, but he is 100% correct on the Constitutional argument, which is all that he is saying.

 

The Constitional guarantees are acually rather limited, which is why it is all the more important to fiercely protect the ones we do have.

 

I don't agree with the result, either, don't get me wrong, but all the lack of Constitutional protection means is that the practice can be regulated. If it is a Constitutional right, the state's right to regulate is much more limited.

 

Terri

 

I think the matter would fall into the area of "rights to privacy", which while not explicitly enumerated in the Constitution are accepted by most legal scholars (and for the moment by a majority of the Supreme Court) and on the related point of limits on Federal and State authority.

 

This case would likely run afoul of the State Constitution (it would in California in my non-expert opinion as we have an explicit right to privacy here. I still think a narrowly drawn opinion could find the cow-share program for producing raw milk illegal. As I said, I don't support bans on the commercial production of raw milk (as long as caries meet reasonable health standards) but if a legislature passes laws to prevent the production and sale by commercial dairies I can see how a judge would rule against such a scheme.

 

Bill

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Yep, and consuming or producing raw milk is no different than a number of other practices that are pretty heavily regulated:

1. Selling or using non-FDA approved drugs.

2. The developer who wants to build a tenement next door to you.

3. Going without health insurance.

4. Homeschooling!

5. Walking down the street naked.

6. Using recreational drugs.

7. Threatening your neighbors with bodily harm.

8. Operating a business without a license.

9. Practicing medicine without a license--full disclosure, notwithstanding.

10. Cutting hair without going to cosmetology school.

11. Reckless driving when no one is hurt.

12. The sale of alcohol, the operation of strip clubs, and prostitution.

 

Why is it okay to regulate these things, all of which are victimless offenses, and not the production and sale of raw milk? Liberty and the pursuit of happiness are not all they're cracked up to be.

 

Terri

 

 

Drinking raw milk only affects the person drinking it. It does not, in any way, interfere with your rights. Many of your examples are not valid. Most of them do affect others and possibly their pursuit of happiness. My drinking raw milk does not one thing to another soul, except me. It doesn't make me drunk that would potentially harm someone else. I assure you that the ones who are doing the regulating are not doing it out of my (or your) best interest.

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The Constitional guarantees are acually rather limited...

 

Really?

 

Have you ever heard of the 10th amendment?

 

Granted, in practice, it is largely ignored, but we have turned things upside down, with the presumption that we only have the rights the government has granted us.

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Drinking raw milk only affects the person drinking it. It does not, in any way, interfere with your rights. Many of your examples are not valid. Most of them do affect others and possibly their pursuit of happiness. My drinking raw milk does not one thing to another soul, except me. It doesn't make me drunk that would potentially harm someone else. I assure you that the ones who are doing the regulating are not doing it out of my (or your) best interest.

 

And of which of my examples is that not also true? It had better be all of them.

 

Terri

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I think the matter would fall into the area of "rights to privacy", which while not explicitly enumerated in the Constitution are accepted by most legal scholars (and for the moment by a majority of the Supreme Court) and on the related point of limits on Federal and State authority.

 

This case would likely run afoul of the State Constitution (it would in California in my non-expert opinion as we have an explicit right to privacy here. I still think a narrowly drawn opinion could find the cow-share program for producing raw milk illegal. As I said, I don't support bans on the commercial production of raw milk (as long as caries meet reasonable health standards) but if a legislature passes laws to prevent the production and sale by commercial dairies I can see how a judge would rule against such a scheme.

 

Bill

 

Besides abortion, which is where the right to privacy originated, and birth control, to what rights has a federal right of privacy been extended? Certainly not milk production.

 

Terri

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Really?

 

Have you ever heard of the 10th amendment?

 

Granted, in practice, it is largely ignored, but we have turned things upside down, with the presumption that we only have the rights the government has granted us.

 

Just calling 'em like I see 'em.

 

Terri

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Besides abortion, which is where the right to privacy originated, and birth control, to what rights has a federal right of privacy been extended? Certainly not milk production.

 

Terri

 

Not for commercial milk production, that is for sure. I agree.

 

But I don't think any government authority including the courts or the leglislature would attempt to outlaw an individual right to consume milk they produced themselves (in a way that conformed with local zoning laws).

 

Bill

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Just calling 'em like I see 'em.

 

Could you clarify, please?

 

Do you mean that, as a practical matter, we have few rights left, or do you mean that you disagree that the constitution was set up to limit the powers of the government?

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I am just very glad I live in Missouri where I can have my raw milk delivered to me by my farmer. I hope my state stays sane. I don't get the bid deal. Its milk. Some people buy it to make raw cheese and butter that is more difficult to do with pasteurized.

 

This is why I think more people are becoming libertarians. They notice that simple things, simple liberties are being taken away by our government. Was raw milk legal at the time of our country's founding... you betcha. This is not something new, its milk. Pure milk.

 

I'd think it would be more interesting to see them enforce this upon breastfeeding mothers or those who *gasp* sell or donate breast milk to mothers who cannot nurse or child needs supplementing as do some NICU babies.

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Lucky! In Washington state, the law is written is such a way that cow shares aren't even a viable option. (They're legal, but only through a state-certified dairy, which is what pretty much prohibits the small-farm producer -- too much cost and regulation to be certified).

 

Raw milk sales in Washington state are legal but regulated, which is as it should be. The licensing costs aren't burdensome.

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Not for commercial milk production, that is for sure. I agree.

 

But I don't think any government authority including the courts or the leglislature would attempt to outlaw an individual right to consume milk they produced themselves (in a way that conformed with local zoning laws).

 

Bill

 

I tend to agree with this. This isn't about the rights of an individual, this is about commerce. Many states have no homeschool regulation, you wouldn't get in trouble in any state for cutting you own hair, some of you are confusing private rights with *commerce* (which includes most of the things on the list written by the other poster). Governments have always regulated commerce. It is a red herring argument to say our private rights are being eroded and then your examples are mostly commercial issues.

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I'd think it would be more interesting to see them enforce this upon breastfeeding mothers or those who *gasp* sell or donate breast milk to mothers who cannot nurse or child needs supplementing as do some NICU babies.

 

Donated breastmilk is pasteurized, regulated, controlled.

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Donated breastmilk is pasteurized, regulated, controlled.

 

And there is also a "raw milk" donation-only (free) side, as the donated breastmilk to the milk banks is sold for (last I checked) over a dollar an OUNCE. Plus a lot of moms have babies with food allergies, and people will donate milk from a mom who does not eat those allergens. Most moms do provide testing themselves voluntarily, but not pasteurization. Just FYI--not getting into the legal/ethical/personal comfort level there. Just addressing the issue as it was brought up. :) There is a regulated market and a raw market where most providers go to great lengths to make sure it's safe, in both milk areas.

Edited by LittleIzumi
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Yep, and consuming or producing raw milk is no different than a number of other practices that are pretty heavily regulated:

1. Selling or using non-FDA approved drugs.

 

I'm ok with this one too. False advertising I'm not ok with, but if someone wants to become a druggie - or try an experimental treatment - I'm ok with that.

 

2. The developer who wants to build a tenement next door to you.

This affects the rights of others so is not applicable in the same way.

 

3. Going without health insurance.

And the problem is?

 

4. Homeschooling!

One can argue this affects the rights of others too. It is argued that way a bit. Are you saying the courts should outlaw it???

 

5. Walking down the street naked.

This affects the rights of others. (Common decency laws.) Watching someone drink raw milk is no way the same.

 

6. Using recreational drugs.

Same feeling as #1. I would allow for laws similar to DUI (which affects the safety of others).

7. Threatening your neighbors with bodily harm.

This REALLY affects others (stress factor if nothing else). Drinking raw milk does nothing like it.

 

8. Operating a business without a license.

This can affect the rights of others due to concerns about whether the business owner is meeting safety and experience levels required.

 

9. Practicing medicine without a license--full disclosure, notwithstanding.

With full disclosure I'm ok with this and feel it doesn't need regulating in the same manner that, say, engineering would.

 

10. Cutting hair without going to cosmetology school.

Where have the courts said you can't cut your own or your family's hair???

 

11. Reckless driving when no one is hurt.

All traffic laws are meant to try to assist safety - common good.

 

12. The sale of alcohol, the operation of strip clubs, and prostitution.

I'm mostly Libertarian. To each our own.

 

Why is it okay to regulate these things, all of which are victimless offenses, and not the production and sale of raw milk? Liberty and the pursuit of happiness are not all they're cracked up to be.

See above. ;)
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Not for commercial milk production, that is for sure. I agree.

 

But I don't think any government authority including the courts or the leglislature would attempt to outlaw an individual right to consume milk they produced themselves (in a way that conformed with local zoning laws).

 

Bill

 

According to the ruling, the farmers can't drink the milk from their own cows, either. I'm not sure what the laws are surrounding that - were they never allowed to drink it in the first place if they own a dairy farm? I think I'll have to do some digging. But if there was never a stipulation like this for dairy farmers on the books, then it would seem as though no resident should be able to drink their own cow's milk, too.

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I was reading about this on another forum. It is my understanding that the judge who passed the ruling retired a week or so after this judgement. I'm on my phone or I would link the thread.

 

Yes, he did. I'm not surprised. Very interesting, though, considering how stinky this whole thing is.

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