CAFOs: A Question of Constitutional Rights
 
by Dr. John Ikerd
Professor Emeritus, University of Missouri at Columbia
 
“CAFOs are legal, so I have a right to operate one.” This is the response CAFO operators often resort to when they can’t think of any other way to answer growing public concerns. It seems logical, on the surface, but it’s not necessarily so. It was once legal to own slaves, but no one has ever had a “right” to own another person. It was once illegal for women to vote, but women have always had a “right” to participate in the political processes of democracy. It was once legal to smoke in airplanes and public buildings, but smokers have never had a “right” to force others around them to breathe second-hand smoke. That fact that something is legal doesn’t give you a “right” to do it.
 
“There is nothing in the Constitution that limits my rights to operate a CAFO, as long as I don’t create a legal nuisance.” Again, this might seem a logical response to questions concerning the “rights” of CAFO operators. Again, it’s not necessarily so. The rights of the people of the United States are not limited to those rights explicitly named in the U.S. Constitution. In fact, Amendment 9 of the Constitution states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
 
In other words, the framers of the Constitution did not attempt to enumerate all of the fundamental rights of US citizens. It clearly states that “other” rights, in addition to those named in the Constitution, were to be “retained by the people.” Some of those “other” rights were later encoded in the Constitution, such as the prohibition of slavery and women’s right to vote. Other unnamed rights have been interpreted by the courts to be covered by specific constitutional rights, such as freedom of speech and religion and the right to privacy. Some un-enumerated rights are so well-established or obvious that they have never been seriously questioned, such as the rights of self-determination and self-defense.
 
The American Declaration Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men.” The rights of self-determination and self-defense were not included in the Constitution because they were “self-evident.” The right of any person to determine for themselves when their health or well-being is being threatened and to take necessary actions to defend themselves against such threats are “self-evident truths.”
 
Our basic human rights to live, to make our own decisions, and a reasonable opportunity to find happiness are clearly among those “other” rights that are not enumerated in the Constitution, but nonetheless, are ensured by the 9th Amendment in the Bill of Rights. Slavery eventually was abolished by a constitutional amendment, at a time when slavery was critical to the US economy. In other cases, unnamed rights have been ensured through laws and regulations, such as those that regulate where people can and can’t smoke tobacco. In some cases, as I believe in the case of CAFOs, the basic human rights to self-defense, self-determination, and an opportunity to enjoy life are among those constitutional rights of all the people that remain as yet unclaimed.
 
What can be more important to the basic right to life than the right to clean air, clean water, and safe food? Stacks of public health research reports clearly link factory farms to a variety of respiratory illnesses in CAFO workers and their neighbors. CAFOs are also frequently linked to the pollution of neighbors’ drinking well water. Monitoring by the EPA and State Departments of Natural Resources (DNR), including the Iowa DNR, consistently find agricultural pollutants in streams that exceed drinking water standards. The World Health Organization has clearly linked contamination of animal food products with multiple-drug-resistant biological organisms to the routine use of antibiotics as growth promoters in CAFOs. A growing scientific consensus is identifying CAFOs as a threat to human health and potentially to life.
 
Americans also have a constitutional right to liberty, including self-determination. We don’t have to wait until we are shot or stabbed to resist an armed attack. In situations where a “reasonable person” would feel threatened, a person has a right to defend oneself. Despite the fact the evidence is compelling, defenders of industrial agriculture often argue there is not yet a “scientific consensus” that a “reasonable person” would feel their health or life could be threatened by a CAFOs, although the evidence is compelling. This is what I call “the tobacco defense.” The tobacco industry argued for decades that there was no “scientific consensus” linking tobacco smoking to public health risks, although their own research indicated otherwise. In the case of CAFOs, the right of self-determination is being denied.
 
In the case of tobacco, the health and lives of millions of people likely were sacrificed because people failed to claim their rights of self-defense and self-determination. However, people at least had an opportunity to move away from smokers, although it might have meant giving up commercial air travel and eating in most restaurants. Moving away from a CAFO often means that neighbors must give up their homes or even the opportunity to live outside of a protected municipality.
 
Americans have a basic human right to the opportunity for a decent quality of life, to the pursuit of happiness, without being forced to flee their once-decent neighborhoods. Current nuisance laws are based on the premise that CAFOs operators have a right to pursue their economic interests unless their neighbors can prove otherwise. Instead, CAFO operators should be required to prove they are not denying the rights of their neighbors’ constitutional right to a living environment sufficiently clean and healthful to afford a desirable quality of life.
 
The Declaration of Independence clearly states that governments are established for the purpose of securing such rights. However, if the government fails to fulfill its responsibility, the Constitution gives “the people” the power to do so. The 10th Amendment to the Constitution states that “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people [emphasis added].”
 
In my personal opinion, the states have failed to protect our constitutional rights of self-determination and self-defense in the case of CAFOs. This means it’s up to “we the people” to find other responsible means of claiming our God-given constitutional rights to life, liberty, and the pursuit of happiness.
 
Dr. John Ikerd, Professor Emeritus of Agricultural Economics at the University of Missouri, Columbia, has enjoyed a 30-year academic career at four Land Grant Universities. He has authored four books and received many honors for his work in agricultural economics.
 
This article first appeared in the JFAN Fall/Winter 2015 Newsletter.