The Dangerous Right to Food Choice

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right.1 The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead suggests that if a right to food liberty were recognized, the chief beneficiaries would not likely be sustainable agriculture consumers and producers, but rather those with the most at stake (and the most expensive lawyers) — big agriculture and large food manufacturers