Short of loading the disobedient onto boxcars headed for “Eastern Resettlement” or an even farther-East gulag forced labor camp, there’s not much government can do when its subjects choose to reject its rules. It can back down (Prohibition) or spend ever more on enforcement (the War on Drugs), or it might—horrors—make compliance voluntary. Case in point: the newly proposed H.R. 875, the Food Safety Modernization Act of 2009. Its advocates claim it will end retaliatory attacks on European-ancestry tummies by native-American Montezuma’s Revenge organisms; its opponents claim it will end grow-your-own, farmers’ markets, independence via green bean self-sufficiency and similar foundation stones of Western Civilization as we have known it. At the nexus of this imminent clash between the Jeffersonian agrarian ideal and IRS-level selective enforcement now stands the most potent group in American politics: above-median-income suburbanites, newly engaged in converting their decorative lawns to productive gardens. In a phrase I wish I had invented, former presidential speechwriter Peggy Noonan labels the folks in this Carhartt- overall-clad, ergonomic-trowel-wielding, organic-veggie-producing demographic cohort “the authentic chic.”
Webster’s definition of chic is “attractive and fashionable,” a description focusing on how one is perceived, or wishes to be perceived, by others. Similarly, Webster’s defines authentic as “reliable” or “entitled to acceptance,” again suggesting the importance of the perceptions of others. Folks for whom the perceptions of others are important fit into the “other-directed” category made famous in 1950 by David Reisman’s sociological analysis, “The Lonely Crowd,” in which he theorized about human societies evolving from traditional to inner-directed to other-directed, folks with their social antennae ever alert for peer group and neighborly approval, and whatever it takes to get it. For most of the history of American suburbia, backyard gardening wasn’t one of those markers; now, fairly suddenly as such things are measured, it is. So much so that it’s been moved by its newly proud, admiration-seeking practitioners to the front lawn for higher visibility.
It already has higher visibility, in a political sense, because of the sheer numbers of practitioners involved. From the May 2009 issue of Acres USA, which tracks such trends, we learn that “some 7 million more people planted food gardens this year than last, up 20 percent. Even before this upswing, 31 percent of households grew some of their own food.” And, almost all of those households include a couple of voters, making the suburbanite lawn-to-garden cohort the largest single issue voting bloc in American politics, roughly three times the size of the union bloc or the government-employee bloc. It’s about to get even larger: from the June 26 2006 issue of Time magazine came the factoid stating that 80 percent of households have lawns that could be gardens —“edible estates” in Time’s too-cute phrase—and the other 20, fully urban, can sign up for community garden plots almost everywhere. The potential exists for all 100 million American households to be growing their own soon, in a size spectrum ranging from the large-lot exurbanites raising miniature Hereford cattle for fun and food to the high-rise urbanites raising arugula and cilantro on their apartment balconies. In between are such homeowners as Rosemarie Morgan of New Haven, Conn., with her downtown house and lot a half-mile from Yale. She raises chickens, and, in an approving article widely distributed by the Newport News, Va., Planning Department, she is described as the beneficiary of the “don’t-cluck-don’t-tell” policy of the New Haven authorities, who could prohibit such grow-your-own initiatives, but choose not to, presumably because they can count votes as well as any other career politicians. The widespread grower fear concerning H.R. 875 is that the federal authorities will choose the other way, vote count notwithstanding.
Ostensibly, the proposed Food Safety Modernization Act seems benign: research, DNA matching system, public education, traceability and so on. Skeptics see overreach in the details, ranging from new rules for seed cleaning and saving to the definition of a “regulated establishment.” Here’s an example, from the investigation and commentary of OpEd News: its writers discuss a supposed myth, that H.R. 875 would regulate front lawn gardens. Not so written, say 875’s defenders; not specifically excluded, say 875’s critics. They follow up with this: food producing, handling or selling establishments (farmers’ markets, for example, and producers selling at such venues) will be regulated, households do “handling,” therefore they will also be regulated. The Webster’s definition of “establishment,” they note ominously, includes residences.
Lest you think this a bridge too far (for younger, post-WWII readers, a little Arnhem campaign reading will be useful) you may want to consider another benchmark from those unpleasant years: the 1942 decision of the U.S. Supreme Court in Wickard v. Filburn. Led by Chief Justice Harlan Stone, all nine agreed that USDA Secretary Wickard had the authority to regulate the household-use grain produced by farmer Filburn, in accordance with the Agricultural Adjustment Act of 1938, because, even though it wasn’t used in Interstate Commerce, it replaced wheat that Filburn would otherwise have had to buy from interstate sources and would have been regulated by USDA under the Commerce Clause of the Constitution. Additionally, Filburn’s criminally grown 239 bushels violated his USDA wheat quota. The decision had impact far beyond the WWII years: it was the precedent for the 2005 SCOTUS decision in Gonzales v. Raich, that homegrown medicinal marijuana is a legitimate subject of Federal regulation because, as with Filburn’s wheat, it competes with marijuana that moves in Interstate Commerce. Here’s the Court’s explanation: “Wickard thus establishes that Congress can regulate purely intrastate activity that is not in itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” My editorial comment: “Wow!”
Thus, as for H.R. 875, the Wickard precedent gives weight—dare I say “gravitas”?—to the fears of the lawn-to-garden folks that their output would be surveilled, sampled, regulated, perhaps taxed, quotas or even prohibited in some of their agricultural endeavors, whether they vend the inevitable surplus to neighbors, passersby (see the Time article on this aspect of front-lawn gardening) or at the village farmers’ market.
As for “real” farmers, that increasingly endangered professional grower species that really does sell commodities, in quantity, into Interstate Commerce, H.R. 875 does little in the way of governmental intrusion beyond what’s already being done, as any commercial dairyman can testify. The big new addition would be livestock identification, the “national traceability system,” presumably as applicable to large-scale CAFO’s (Concentrated Animal Feedlot Operations) as to the family-farm dairyman, to the authentic-chic suburbanites and exurbanites now into highly visible lawn-to-garden with surpluses destined for the organic farmers’ market, and even to Mrs. Rosemarie Morgan with her home poultry flock. If she can refrain from selling eggs to the Yale professoriat, she ought to be exempt; if not, her animal-ID costs ought to be paid (my opinion, as befits this opinion column) by the folks who want the program, almost exclusively, I’d guess, the consuming rather than the producing part of the field-to-table system. There’s precedent for this beneficiary-should-pay proposal. It comes, interestingly enough, out of public education.
Specifically, it comes out of the student achievement testing program that the Feds have been operating since 1971; after 30 years of stagnant scores, in 2001, the Department of Education upped the ante to require that almost all students demonstrate “proficiency” (roughly, the ability to function at grade level in such subjects as reading and math) by 2014. Presently, about a third show such capability. Like animal ID for livestock keepers, getting students to “proficient” has not, until quite recently, been on the must-do list for educators, although we on the outside thought, perhaps naively, that it was. When the question became clear in 2001, with various penalties actually enacted for school systems that weren’t making “adequate yearly progress” toward nearly full student proficiency by 2014, Vermont educators filed a lawsuit against an “unfunded mandate,” their argument based on student proficiency being maybe a nice thing, but not their real job or responsibility, and if the Feds want almost all students, not just a third or so, academically proficient, then the Feds are just going to have to pay the extra costs. Call it a voluntary assessment for a voluntary regulation: if you want the benefit of presumed additional food safety, pay for it. Conversely, if you’re willing to purchase untracked eggs or beef cuts, you can save a few dollars. Free choice.
But, savvy politicians catering, as usual, to urban-consumer wishes and fears, shouldn’t pretend that an industry—agriculture at both large and small scale—can pass along such costs, in this case, the costs of an every animal-ID program, when history has shown the unwillingness of their own majority constituency, urbanite consumers, expressed in political maneuverings, to accept any such pass alongs.
The author is an architect and former farmer.