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Of Milk and the Constitution

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Document pages: 68 pages

Abstract: Central cases in our constitutional law canon share an unexpected similarity: they all arose out of litigation involving cattle and milk. The Slaughter-House Cases, Nebbia v. New York, Carolene Products, and Wickard v. Filburn are familiar to generations of students as iconic cases that address key concepts such as equal protection, the states’ police powers, and Congress’ commerce powers. Importantly, they also ground the Supreme Court’s “dairy jurisprudence” — the series of cases about cattle and milk decided between the 1880s and the early 2000s. This Article argues that this dairy jurisprudence expresses an underlying ideology of nutrition, which glorifies milk as “nature’s perfect food.” In the Court’s discourse, milk drinking is channeled through the language of constitutional rights, creating what this Article calls a “quasi-constitutionalization” of milk. This quasi-constituationalization breaks down the traditional dichotomy between constitutional law and ordinary law and is thus interesting in its own right. But the privileged status of milk is in tension with other constitutional principles, in particular with equal protection. The elevation of milk to a protected legal status reinforces race, as well as class, gender, and other inequities. Its detrimental effects are particularly salient for racial and ethnic minorities who are more likely to be lactose intolerant than whites of European descent. Despite these problems with milk, dairy jurisprudence could pave the way for the recognition of a broad constitutional right to food, which would benefit all Americans.

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