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THE DARK SIDE: On ‘filled milk’ and the Beatles

From time to time, I get in the following argument:

Fool: “I love the Beatles.”

Ziemer: “Look, man, the Beatles are not good music. They are not even bad music. They are anti-music. The abhorrent noise that the Beatles made is not simply not music, but it is the opposite of music.”

Fool: “You are a fascist.”

A substantively identical conversation occurs whenever an argument breaks out over U.S. v. Carolene Products, 304 U.S. 144 (1938), which deals with unconscionably upholding the criminalization of shipping filled milk across a state line.

“Filled milk,” in case you forgot from law school, is merely condensed milk that contains fats from products other than milk, such as vegetable oil or coconut oil.

A modern day corollary of the law at issue in Carolene Products would be if the dairy industry bribed enough Congressmen to outlaw the interstate shipment of Cool Whip.

The statute was, of course, naked special interest legislation, served no legitimate health interest and was enacted merely to secure the support of dairy farmers for incumbent Congressmen.

At the time the court issued its opinion, 35 state legislatures, acting as pawns of the dairy industry, had already outlawed filled milk altogether. So, the federal law’s only purpose was to effectively outlaw it in the few states not controlled by the powerful milk lobbyists.

But the court shamelessly refused to even consider the argument that the statute served no legitimate health concern, and thus violated due process.

Enemies of human liberty praise Carolene Products; I argue the opinion is not entitled to be considered law at all … and they call me a fascist.

Carolene Products is not good law. It is not bad law either. It is anti-law.

Just as the Beatles deliberately produced abhorrent noise antithetical to what any reasonable person would consider music, so too did the U.S. Supreme Court in Carolene Products deliberately produce an opinion antithetical to law. The court abdicated its responsibility to enforce the Due Process Clause of the U.S. Constitution.

Looking back on human history in general, and human liberty in particular, there are several important documents that stand apart and above from the rest as essential documents: the Magna Carta (1215), the Declaration of Independence (1776), the U.S. Constitution (1787), the adoption of the 13th, 14th, and 15th Amendments to the U.S. Constitution (1865-1870), and of course, the opinion of the U.S. Supreme Court in Lochner v. New York, 198 U.S. 45 (1905).

These assorted documents stood as bedrock bulwarks against government tyranny until that infamous day in 1938 when the U.S. Supreme Court declared, in the infamous footnote 4 to Carolene Products, that human liberty was no longer any relevant concern. Since then, Congress has been free to impose any infringement on liberty it chooses, and courts are obligated to pretend that no such infringement has occurred. Lochner has not been cited as precedent to overturn special interest legislation to this day.

One of these days, Lochner will be restored as law. And one of these days, people will stop listening to the Beatles, and I’ll never have to hear that noise again.

But until then, I’ll quote those same Beatles. “You say you want a revolution?” Yes, I do.


  1. This is really funny! I almost thought you were serious (absurd but serious) until you added Lochner to the list of documents important to human liberty. That’s like putting the Dred Scot case on the list. I should have known you were just joking when you labeled Beatles music “abhorrent noise.”

  2. you and i may disagree about whether or not liberty of contract is a constitutional right or not, and i respect your view, though it is contary to mine. but it is unacceptable for you to compare lochner to dred scott. in all of u.s. constitutiotnal history, there are no two opinions further apart than lochner and dred scott. they are the ultimate contrasts in u.s. law. dred scott embraces slavery; lochner is the ultimate epitome of human liberty. i understand you disagree with lochner. fine. but to compare it to dred scott is sick and evil, and you should be ashamed.

  3. I understand why you would wish to disassociate your views on property rights from the Dred Scot decision, but the “human liberty” of property rights is what Dred Scot was all about. As you may recall, the majority held that slaves, as chattels or private property, could not be taken away from their owners without due process. If there is an unconditional constitutional liberty to property and to contract, as you always are asserting, then it should not matter to you what the contract is about. Likewise, if the right to contract is limited, as you suggest by attempting to distinguish Dred Scot, then how do you set the boundaries? You previously argued that child labor is not necessarily exempt, or health and safety standards. Then why slavery if not for the 13th Amendment?

    I certainly do not agree with either Dred Scot or Lochner, and for the same reasons. Both represent the exact opposite of true human freedom and exactly why democratic government is necessary to temper the vicious and harmful excesses of the “free market.”

    And no, I do not view you or your opinions on this matter as “sick” or “evil,” merely misguided and wrong.

  4. dred scott and lochner are polar opposites, not similar. dred scott upheld the right of one man to own another man’s labor. lochner held every man has the right to own his own time and labor, and sell it on his own terms. as far as democracy goes, dred scott upheld a law enacted by a democratically elected congress that limited human liberty. lochner struck down a state statute that infringed on it. e can’t even imagine 2 opinions more dissimilar. both laws are examples of the trouble with majority rule — majorities infringe on minority rights — and why we have a constitution tht limits government power, and judicial review. but only in lochner did the process work. in dred scott, and carolene products, the constitutional process failed because the justices abdicated their duty.

  5. You might want to reread Dred Scot. Exactly like Lochner, it actually struck down an act of a duly elected legislature that furthered individual liberty (in Dred Scot, the Missouri Compromise’s limited protection against slavery in free territories as part of the Missouri Compromise and in Lochner, the New York legislature’s protection of workers from slave-like conditions of employment) because it allegedly interfered with the right to property without due process. Just as in Lochner, the Dred Scot decision was based, not on legal principle, but on the personal beliefs of the justices regarding what was or was not sufficient reason for the legislature or Congress to act. Just as in Lochner, the Dred Scot Court overreached its Constitutional authority in an attempt to impose its personal political views, whether to protect the institution of slavery or to protect the institution of business imposing slave-like and unhealthy conditions on workers powerless to prevent those conditions themselves.

  6. that’s one way to look at it. while it struck down the missouri compromise, it upheld the fugitive slave act. maybe the case is most similar to marshall v. stern, where the court had to strike a balance between conflicting constitutional provisions regarding jurisdiction over bankruptcy and trust and estae disputes. but its irrelevant to lochner.

  7. Actually, again, no. Dred Scot struck down the Missouri Compromise and upheld the Fugitive Slave Act for the very reasons that you lionize the Lochner decision for: it was necessary in the majority’s view to protect the overriding interest in property. The fact that the “property” at issue in Dred Scot was another human being while in Lochner the “property” at issue was a capitalist’s ability to control other human beings who had no bargaining power to resist is meaningless. The underlying principle of both decisions remains the same.

    Now, I fully understand that we both view slavery as abhorrent, and I am not in any way suggesting that your misplaced support for Lochner means otherwise. However, since they are both based on the same principles, you have to have some legitimate rule for distinguish what you admit to be “good” interference with property and contracts and what you claim to be “bad” interference. More specifically, since you hold Lochner in such high regard, you must provide some legitimate basis for distinguishing between good rules that interfere with involuntary servitude in the form of slavery and “bad” rules that interfere with involuntary servitude in the form of excessive hours and unsafe working conditions that workers do not have the bargaining power to protect themselves from.

    In examining this, you might also wish to review again your Locke and Hume on which our Constitutional system was based and the fact that governments are established exactly because of the need to protect individuals from those who are more powerful and seek to harm or take advantage of them. That, of course, was exactly what the law improperly struck down in Lochner did.

  8. you’ve still got it all wrong. the constitution prior to the enactment of the 13th, 14th, and 15th amendments was a very flawed document. although there is no reference to slavery in the document, it is implicitly recognized, if by nothing else, the rule that slaves count as 3/5 of persons. the court in dred scott had to reconcile an 1820 law and an 1850 law, both passed by congress.
    they enforced what we would both consider the wrong law and nullified the other.
    but lochner had nothing to do with “involuntary servitude in the form of excessive hours and unsafe working conditions that workers do not have the bargaining power to protect themselves from.”
    you know as well as i do that the law at issue was nothing more than naked special interest legislation written by, and paid for in the form of obscen bribes to legislators, by large, unionized bakers (and their unionized employees, too, in concert), to shut down small bakeries and their non-union employees. it had nothing to do with safety, and you know that.

  9. how about we get back to the actual column i wrote. are you actually willing to defend the law at issue as a legitimate health regulation, rather than an obscene law bought and paid for by a powerful lobby to shut down competitors?

  10. Our US Supreme Court has a long history of issuing opinions that seem to make no sense. Dred Scott is one; Bush v. Gore another and to cap it off, Citizens United v. FEC may be the most bizarre decision in U.S. history. If we are talking about the Commerce Clause, it seems Congress now has no limits to what it may do. There is a reason for that. Big business wants it that way.

    Dave raises an interesting question. Should people be free to sell their labor in any way they want or should we follow the “nanny state” model? We have been following the nanny state model and in all aspects have gone too far in personal regulation and not nearly far enough in the regulation of business. We regulate individual behavior to the nth degree, even though what those individuals are doing can cause little overall harm to our nation. On the other hand, we allow business behemoths, whose reckless conduct almost brought about a world-wide depression, to do mostly whatever they want free of regulation.

    Could Lochner become the law again? It’s possible. Would that be good for the country? That’s debatable. Imagine a federal government limited to building post offices and funding wars. As crazy as it seems, I can see the Court re-adopting Lochner. Perhaps it might even do so this year when it decides the Obamacare case.

  11. only the commerce clause is at issue in the obamacare case. there’s no due process issue involved.

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