Wisconsin law forbids the sale of any butter unless it has first been sampled and “graded.” This is not to ensure the product is not contaminated or otherwise dangerous. It is not even to determine whether it has nutritional value. It is, rather, a mandatory taste test in which a government “connoisseur” must assess whether a butter has “fine and pleasing” flavor or tastes too “acidic.”
This bureaucrat must evaluate its aroma and texture and affix a letter grade. That grade must be displayed on the package so no one in our Dairy State need fend for himself in deciding what to spread on his morning bagel.
The notion that you cannot eat something unless the government tries it first and tells you what it thinks is bad enough. But the law also fences out certain competitors. There is no mechanism in place for grading imported butter, so Wisconsin retailers may not offer them.
This de facto prohibition includes Kerrygold, an expensive Irish import that has developed something of a cult following. Having tasted this creamy contraband (across the state line, of course), I can see why. It may well be the Platonic Ideal of Butter. But folks in Wisconsin will never know because some apparatchik on the sixth floor of the Department of Agriculture, Trade, and Consumer Protection has not yet spoken.
Is It Activist for Judges to Restrain the Government?
There is an ongoing debate about the judicial activism and engagement. Those who emphasize the former fear judges will invent rights not found in or reasonably inferred from the Constitution. They are concerned about judges imposing leftist social and economic policy. They think the solution is deference to majorities. Legislatures should be able to do whatever they want unless the Constitution says they can’t.
Those who call for a more active judiciary see our constitutional framework as creating a rule of individual liberty. Congress may act only in furtherance of an enumerated power. State legislatures may act only when justified by their legitimate police powers. Constitutional freedom is not merely a discrete set of exceptions to the plenary authority of government but also a product of limiting government authority to a particular set of tasks and purposes.
In particular, advocates of judicial engagement are increasingly skeptical of what they see as excessive deference to economic regulation. As government has expanded its reach, these regulations, while ostensibly imposed to serve the public, are actually in service of special interests and those seeking protection from the rigors of competition.
Wisconsin has a long history of protecting its dairy industry. For example, it used to prohibit the sale of oleomargarine that had been colored yellow (like butter) so Wisconsin consumers could only purchase an unappetizing white mess and would never be tempted to believe their margarine was butter. Some Wisconsin consumers organized “oleo runs” to the Illinois border to evade that particular consumer “protection.”
Butter Protectionism Is a Bigger Story than You Think
Wisconsin’s butter protectionism is a small example of a larger story. Over the years, our political culture, aided by the courts, has lost the notion that there ought to be limits on what we ask government to do.
A government that can do anything can accomplish quite a bit of mischief. In a highly regulated world, it is the small minorities who stand to benefit the most who will have the motivation, knowledge, and resources to manipulate the rules in their favor. From overly restrictive occupational licensing to elaborate restrictions on small business start-ups, regulation in the public interest too often turns out to be regulation in favor of the well-connected.
Butter freedom may not be the most critical aspect of economic liberty, but it does represent a teachable moment. So my organization, the Wisconsin Institute for Law and Liberty, filed suit on behalf of those who want to buy and sell Kerrygold, seeking a determination that Wisconsin’s mandatory taste test for butter and the requirement that every package communicate its results violates the economic liberty of retailers and consumers and, by mandating speech, the First Amendment rights of retailers.
We are not asking the courts to make legislative judgments about the particulars of dairy regulation. We are asking them only to recognize that our freedoms—even our economic freedoms—do not exist solely at the whim of the majority or of the highly motivated rent-seekers who too often bend government to their will.
The question is not so much whether the Constitution establishes a specified “right” to buy whatever butter you want, but whether the government has the power to insist that it protect you from your own taste buds. If such ministrations really serve the public interest, then Wisconsin’s government ought to be able to convincingly explain to a judge why.