A Constitutional Right to Farm?
Updated: Jul 9
Note: This post originally appeared in the Delmarva Farmer July 22, 2014, Vol. 39, No. 20. This post does not also substitute for legal advice.
State constitutions typically guarantee their citizens freedom of speech, the right to life, liberty, pursuit of happiness, and the right to a jury trial, but what about a right to farm? In the past few years, a few states in the Midwest have put forward constitutional amendments which enshrine a right to farm in their states’ constitutions. In 2012, North Dakota voters approved a constitutional amendment guaranteeing just that – a right to farm using modern agricultural technology and practices. This year, voters in Missouri and Oklahoma will consider constitutional amendments which guarantee farmers in their states a right to farm.
Although each of these states has enacted a right-to-farm law (as have Maryland and Delaware), a right-to-farm constitutional amendment goes a step further than a right-to-farm law. Right-to-farm laws traditionally only provide a defense against a nuisance action, a legal action claiming the farm interfered with a landowner’s use and enjoyment of the landowner’s property. A right-to-farm law does not offer a defense when the claim is that an agricultural producer violated a state or federal environmental law or other state law violation other than nuisance.
A right-to-farm constitutional amendment offers broader protection to agricultural operations. North Dakota’s amendment guarantees the right to farm when the operation adopts modern farming and ranching practices. Oklahoma’s proposed amendment would limit the state legislature’s ability to pass laws to force an agricultural operation to adopt or not adopt certain farming practices. Missouri’s proposed amendment is potentially broader than North Dakota’s or Oklahoma’s and offers those engaged in farming and ranching a right guaranteed forever by the state.
Just how broad are the protections offered by the right–to-farm amendment? Missouri is currently heavily debating this very topic as voters prepare to go to the polls on August 5 and decide the fate of the proposed amendment. Missouri agricultural groups argue that the right-to-farm constitutional amendment is needed to protect the farm industry from aggressive actions by environmental and animal rights groups. Supporters see this amendment as a way to limit the influence of out-of-state interests and keep these interests from meddling in rural affairs. To many supporters, a constitutional amendment protecting the right to farm is just an update on the existing right-to-farm law and works to protect agricultural producers better in changing times.
Opponents, on the other hand, in Missouri see this constitutional amendment as an effort to shield agricultural operations, especially big concentrated animal feeding operations, from further state and local environmental and animal welfare laws. Opponents see this amendment as a way for large agri-corporations (such as Monsanto and Dow) to evade regulations by municipalities and counties in the state.
Passing a right-to-farm amendment does ensure that the state’s legislature would not be able to pass severe restrictions on agriculture, but would still allow for reasonable restrictions on agriculture. All constitutionally protected rights (such as free speech, freedom of religion, and right to own a gun) are allowed to be reasonably restricted. For example, you are guaranteed a right of free speech in both the state and federal constitutions, but a city may reasonably restrict the time, place, and manner in which you exercise that right. You may not have the right to walk down a city street at 2 am with a bullhorn to shout your dislike of X because a city can reasonably restrict your right of free speech to a time of day when your neighbors will not be disturbed.
Once one of these constitutional amendments passes, how will we know what a reasonable restriction is? Good question – and there is no definite answer. There is no exact formula for determining if a restriction on a constitutional right is reasonable. It usually takes years of litigation in the court system to make such a determination.
Although these constitutional amendments offer more protections than a traditional right-to-farm law, the amendment does create the problem that potentially every law impacting agriculture would have to be litigated to determine if it was reasonable (creating more work and money for folks like me). This could actually create more costs for small farmers. The agricultural community will have to keep an eye on states like Missouri, Oklahoma, and North Dakota to determine what the true impact of such constitutional amendments will be on agriculture in their states.