AN INVESTIGATION INTO THE POTENTIAL IMPACT OF CARVE-OUTS FOR RANCHING AND FARMING PROTECTIONS THROUGH STATE CONSTITUTIONAL AMENDMENTS.

• Author: Inman, Michele H.
• Position: NOTES

1. INTRODUCTION

   In recent years, a number of states have sought to amend their constitutions to provide special protections against legislative enactments which may impinge on "farming and ranching" activities. (1) In fact, North Dakota and Missouri have already amended their state constitutions to guarantee the rights of ranchers and farmers to engage in their current practices as well as in unforeseeable technically enhanced practices with unknown ramifications. (2) In Indiana, the Senate considered amending its state constitution to protect the right to farm and ranch in 2015, but declined to do so. (3) More recently in 2016, Oklahoma State Senator Scott Biggs used similar language that provided special protections for these carved-out activities in a proposed constitutional amendment that was placed on the November ballot. (4) The voters defeated the proposal. (5) Nebraska was expected to introduce a similar measure in 2017 after Senator John Kuehn, the measure's sponsor, moved to delay the measure during the final weeks of the 2016 legislative session because some legislators, including one who removed her name as co-sponsor before the debate began, felt that there was too little information about how these constitutional amendments work and whether they are needed in the first place. (6)

   Nonetheless, there's no reason to think that other states, particularly states like North Carolina, which harbors the largest hog slaughtering plant in the world, (7) will not soon be seeking to adopt these same types of amendments to their state constitutions.

   Several questions come to mind when scrutinizing these proposed constitutional amendments. Who qualifies as a "rancher" or "farmer"? Why grant special status to ranching and farming as opposed to any other business or industry? How are these proposed constitutional amendments different from the Right to Farm statutes that all fifty states have on the books that protect farmers and ranchers from nuisance lawsuits? (8) What probable effects will propositions like these have on the interests of parties other than those of ranchers and farmers? What are the vices and virtues of the potential impacts of "Right to Farm" amendments upon anticipated regulatory issues that may arise in the areas of animal cruelty; environmental damage; human nutrition and food safety; and business interests? (9)

   This note investigates the following question: Is it reasonable to create additional rights for ranchers and farmers through state constitutional amendments? This note concludes that the ranchers and farmers benefited by these propositions are not individual, family, or organic farmers, but animal agricultural giants who operate intensive industrial factory farms and slaughterhouses. State laws already provide many agribusiness protections, and agribusiness activities have significant and detrimental effects on animal treatment; (10) the planet's health; (11) human nutrition and food safety; (12) and alternative food production and associated businesses. (13)

2. BACKGROUND

   1. Purpose and History of State Constitutional Amendment Propositions

      States generally differ on the methods used to amend their constitutions in two ways: through the state legislature or by popular initiative. (14) All states, except for Delaware, allow propositions by the legislature though some states require a supermajority in the legislature, while others permit referendums, which are direct votes by the people, or a combination of both or other special procedures. (15) Indiana sought to add its "[R]ight to [F]arm" proposition to its constitution through its legislature. (16) Others may use a referendum that is not through the legislature, but triggered by popular initiative. (17) This process is widely considered to be impracticable because the ballot qualification standards require a minimum number of signatures that are generally exceedingly high; (18) yet the Right to Farm proposition had been successfully placed on the ballot in North Dakota, (19) reflecting the money and power of agribusiness special interests to meet the qualification standard. And, while Missouri and Oklahoma both allow the initiative process, the Right to Farm measures in both states were referred by the state legislatures. (20)

      Initiative petitions have arisen historically as a way for individuals to bypass the federal and state legislative process because "voters may write statutes... which will go to the ballot if sufficient valid petition signatures are gathered" to protect their rights and interests. (21) This legal shortcut has been adopted by states to allow their citizens who felt they were unrepresented by their representatives and under-represented in the Congress to more directly have their voices heard. (22) Thus, state constitutions can provide rights not provided elsewhere. (23)

      Not all states recognize constitutional amendments by initiatives, though virtually all allow them by legislative referral. (24) In fact, just eighteen states recognize initiatives (25) and they require a requisite number of signatures on a petition (between three and fifteen percent of typically the last gubernatorial election total, a generally high standard) in order to appear on the ballot. (26)

      State constitutional amendments are generally welcomed by state supreme courts since they seek "to insulate their decisions [that are above the federal constitutional floor] from Supreme Court review." (27) The standard for avoiding Supreme Court review of a state law judicial decision is an explicit "plain statement" by the state that its holding is based on an "adequate and independent state ground[]" (i.e., a state constitutional amendment) as outlined in Michigan [upsilon]. Long. (28)

      Some people vaunt the constitutional initiative, legislative proposition, and the referendum as an opportunity to educate the public at large on important issues that impact its well-being and interests. (29) However, others lament that special interests are typically necessary to propose the initiative and referendum, write the language of the proposition, campaign for and solicit signatures for the ballot, and then advertise their arguably one-sided message to persuade voters. (30) Some argue that the constitutional proposition process provides for citizen participation and issue debate, which increases voter turnout and the number of informed voters, (31) while representational government results in "[l]egislators consistently vot[ing] on legislation without understanding what is in it [since] reading the bill usually is not part of the procedure, and listening to debate on the bill's merits certainly is not either." (32) Furthermore, the legislative process allows for "logrolling," which essentially means that several issues, none of which have a majority backing, are passed together in one legislative bill so that minority factions win in the end. (33)

      Finally, in a representational government, politicians are elected to act in the public interest, yet oftentimes we experience the "[p]rincipal-agent problem," where agents ignore the public interest if it is not in their own self-interest. (34) Similarly, "public choice" theorists argue that voters "vote in their best economic interest, period," affecting not only public voting, but also resulting in a concentration of lobbying effort and political desire of legislators to remain incumbent to fulfill voters' self-interests, which impact the outcomes of not only representational government but state constitutional propositions as well. (35) For example, with regard to the vast interests in agribusiness to maintain the status quo, "we find a large number of groups whose views might be discounted" for goods like meat, clothing, luxury items, including "[b]utchers, furriers, hunters, cattlemen, chicken farmers, scientific experimenters... [who] cannot... be expected to see the moral issue [of animal cruelty, environmental protection and wildlife habitat destruction, for example] without the distortion of special interest." (36)

      Regardless of whether the benefits of constitutional propositions outweigh the drawbacks to representational government, for the states which adopted the constitutional initiatives, this debate is moot. With North Dakota and Missouri already having adopted a constitutional amendment for the protection of farmers and ranchers, (37) and Oklahoma voters and the Indiana Senate more recently defeating such measures, (38) while the Nebraska Legislature debated whether to place such a proposal on the ballot in 2016, (39) we can expect to see more of these proposals be presented to state legislators and voters in the future.

      These amendments limit state legislation of agribusiness to one degree or another, which affect states' police power to safeguard the health, safety and welfare of their citizens. (40) Given that state constitutional amendments are specifically worded so that they "provide less justification for flexible interpretation," (41) the texts of the amendments become crucial in discerning just how much state power is curbed and how citizens' interests might be affected; hence, the need to examine the texts of the constitutional initiatives for the carve-outs of ranching and farming protections.

   2. Purpose and History of "Right to Farm" Constitutional Amendments

      In 2016, Oklahoma was the most recent state to consider amending its constitution with a proposition that would ensure rights "to engage in farming and ranching practices." (42) Its voters, however, soundly defeated the proposition, with sixty percent of the voters voting no. (43) Indiana preceded Oklahoma in 2015 by defeating a similar proposition with a legislative vote. (44) However, two states have added Right to Farm protections to their constitutions: North Dakota in 2012 and Missouri in 2014. (45)

      The first step is to examine the language of these propositions in analyzing what these constitutional proposals...