The Corner

On the ‘Right to Drink Milk’ Case

It is, of course, completely absurd (I just spared you an “udder-ly”) that the Wisconsin government is cracking down on the sale of “raw milk.” But the argument that the law somehow goes beyond the power of a state government is daffy. The judge was right to deny the motion for summary judgment: There is no “fundamental right” to drink your own cow’s milk.

As the judge explained in a clarification of his ruling, the plaintiffs’ argument boiled down to pointing at a bunch of other “rights” the courts have invented — including the right to an abortion — and asking, “What good are all the fundamental rights mentioned above if a person cannot consume the food of his/her own choice?” They also claimed that their freedom of association includes the right to gather and consume an illegal product. I don’t think this is reasoning that conservatives should find compelling.

Further, the media line about how you can’t “drink your own cow’s milk” in Wisconsin is a bit of a stretch. The text of the law that authorities are using to crack down on unpasteurized milk says “sell or distribute,” not “consume”; Wisconsin has traditionally interpreted the law to mean that people who own cows can drink the milk without pasteurization. At issue here is a farm that set up a “membership” program through which people could partly “own” the farm and therefore consume the milk — a questionable move that skirts the law.

In other words, the issue is whether the farm was “sell[ing]” the milk, or whether it actually conferred ownership of the cows in some meaningful way — everyone agrees that if you own a cow in the traditional sense, you can consume the milk under Wisconsin law, even in the absence of a “fundamental right.”

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