Opinion
My View: The unconstitutionality of federal fishing law
Under the guise of helping in the management of common resources, an agency of the federal government, the National Oceanic and Atmospheric Administration and its National Marine Fisheries Service, is transforming the open ocean into an enclosed field — a field one can enter only upon paying a considerable access fee.
Once in the field, strict control is exercised over any and all aspects of the fisheries: seasons allowed, days allowed, zones allowed, species allowed, amounts allowed.
These decisions are taken on the basis of obsolete science that is questionable at best, the linear and static conception of the food pyramid.
Modern science that is thought out in serious institutions of higher learning and is written up in the most respected journals, science that is dynamic and organic and reasons in term of cyclical predator-prey patterns, is not given any consideration.
Much worse still, these decisions, being taken in pursuit of an ideology, the ideology of privatization, are so inefficient as to never reach their stated aims.
Resources are not being privatized; rather, they are being increasingly controlled by a series of monopolistic concerns. After more than 20 years of the most unconscionable restrictions, some species are still in danger of collapse; and those species that have recovered have recovered, not because of the management regimen, but because private enterprise has taken stocks of predators out of the water, and NMFS is now attempting to restrict the harvesting of those predators!
What is outright despicable and intolerable is that fishermen have been criminalized: They are being treated as guilty before being proven to have committed any wrongful act.
This law is the Magnuson-Stevens Act, which frames the regulation of our fisheries. This law must be struck down because it is not only inefficient and unjust, it is also unconstitutional.
At the very base of the entire construction there is the legal enclosure of the commons. The enclosure of the commons is an act of thievery by the state. Nowhere in the United States Constitution is the conception that the government owns property that belongs to the people as a whole.
Thievery is clearly unconstitutional and the Magnuson-Stevens Act is clearly unconstitutional:
A law used for such blatantly unjust purposes as the criminalization of fishermen ...
A law used for such blatantly inefficient purposes as the mismanagement of the fisheries ...
A law used for such blatantly ideological purposes as the privatization of the commons ...
A law inexplicably used to restrict competition; a law that is inexplicably used to raise the cost of fishing effort.
Such a law cannot possibly be considered to be constitutional in a democratic state. Such a law must be struck down in a civil society.
I do not pretend to know the criteria that our Nine Wise Men and Women on the Supreme Court are using today to judge the constitutionality of any law. I do not pretend to know the criteria used by the variegated system of courts in the U.S. to consider that a law might be unconstitutional.
What I do know is that each and every one of the above statements can be effectively verified in a court of law, a court of common law. In the United States, we are still ruled by the Common Law.
I believe that, if each aggrieved community of fishermen and business people who live on the effort of fishermen sues NOAA, NMFS, and the environemental groups who have pushed these policies — even from inside our own government, as they concede — the aggrieved parties will recover damages inflicted upon their communities during the last 20 years of enforcement of this clearly unconstitutional law.
Recourse to the courts of law is a stopgap measure. The final goal has to be political. It has to involve changing the preamble to this unconstitutional law. This law will have to be restructured in such a way as to favor, rather than destroy, the family fishing operation.
The family fishing operation is private enterprise at its best.
Carmine Gorga, PhD, is president of Polis-tics Inc. His latest book is titled "To My Polis, With Love: May Gloucester Show the World the Ways of Frugality."
- Opinion
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Editorial: Skewed federal policies make a contradiction out of Labor Day
