Excerpted From: Jessica Guarino, The Injustices of Agricultural Exceptionalism: A History and Policy of Erasure, 27 3 Drake Journal of Agricultural Law 21 (Fall, 2022) (168 Footnotes) (Full Document)


JessicaGuarinoRegulation of agriculture in the United States, under the guise of a benevolent policy of “agricultural exceptionalism,” perpetuates an intensely anti-democratic reality in the United States food production. Policymakers and politicians alike insist that the hollow structure of agricultural regulation protects citizens of the highest virtue--independent, self-sufficient family farms that represent the quintessentially “American” essence--and thus our democracy writ large. Yet the practice of agricultural exceptionalism in the United States creates and continues an agricultural system in which abuse of workers and the land is foundational. Especially amidst the ongoing COVID-19 pandemic, the cognitive dissonance of calling farmworkers “essential” while simultaneously allowing for illness and the elements to take their lives was and continues to be blatant. This discrimination is particularly evident where an array of federal and state protections are afforded to nearly all other industries, but agricultural workers are specifically excluded from legislation ensuring basic worker rights such as livable wages, limited exposure to toxic workplace environments, and freedom from discrimination in the workplace. Despite this reality, most consumers remain too distant from their food source--physically and mentally--to instigate the change warranted by the horrors inflicted upon farmworkers. The public blindness about injustices of our food system is intentional and built into the very essence of the United States agricultural policy.

Though oppression of farmworkers through agricultural law and policy is nothing novel in the United States, its modern manifestation demands explanation. How can the same policies that identify agriculture as essential to human and societal survival create working conditions perilous to farmworker lives? When did agricultural policy start encouraging and perpetuating farming practices that sacrifice stewardship for profit at every instance? Criticism of agricultural practices, who bears the responsibility for performing them, and how that performance manifests are questions Americans have asked of themselves time and again. From the era of European settlement up until the present day, the United States continues to reinforce a caste system that has been with us all along. The only immutable principle of agriculture is that it is essential to human survival. The rest of the United States agricultural system's stagnancy when it comes to justice and reform suggests an industry-wide choice, given its persistence.

Agricultural exceptionalism is broadly identified in scholarship as “the exemption of agriculture from social, labor, health, and safety legislation [that] has reinforced agriculture's unique status in law and society.” Contemporary legal scholars concentrate primarily on the deleterious effects that this regulatory approach creates, from the exclusion of farmworkers from federal wage and labor protections to their unregulated exposure to pesticides, harsh weather, and other hazardous work conditions it permits. Additionally, the implementation of agricultural exceptionalism has similarly been blamed for the horrific environmental destruction generated by the lack of regulatory practices. Discussion of these particular connections between present-day working conditions and agricultural practices must carefully connect the dots between the exemption of agriculture from a wide array of regulatory edicts to shed light on the deleterious conditions the omission causes. It is not difficult to imagine that where employers are not required to provide costly protections, the bottom dollar decides for them. The more perplexing question arises from “why” humanitarian motivations are absent and why this has become the norm. Rarely found in the literature is an examination of agricultural exceptionalism's entrenched and unique history in the United States as well as how its manifestation has and continued to morph to avoid systemic accountability.

Behind the policy of agricultural exceptionalism in the United States' regulations is what some scholars coin the “regressive agrarian social imaginary.” At its heart, the agrarian social imaginary rests on what, across the literature and academic fields, is predominately referred to as “the Jeffersonian ideal,” a nation built of “independent, property-owning, small-scale farmers.” “Yeoman,” as they would come to be known, a romanticized version of the average American farmer, were thought to possess the highest virtues a newly-forming democracy could hope to secure. Though this pastoral narrative persists, current USDA data shows that our commercial-industrial agricultural system looks drastically different in both the size of its operations and what is cultivated from them than the conception Thomas Jefferson envisioned. Instead of promoting self-sufficiency and independence, our agricultural system “valorizes patriarchal ‘family values,’ denies historical legacies of racism and colonialism, and relies for its coherence on indigenous erasure.” If the policy of agricultural exceptionalism champions protecting both the tangible (food/agriculture products) and intangible products of agriculture, the current regulatory structure it engenders fails to do so.

The literature on the subject identifies two primary geneses of agricultural exceptionalism in United States regulation: (1) the founding era, namely Thomas Jefferson's notions of agrarian democracy during the nation's founding, and (2) the New Deal era's legislation and political dynamics. To the extent the origins of agricultural exceptionalism are discussed in scholarship, the analysis is often narrowed to social and economic forces. Many scholars that point to Thomas Jefferson as the source of agricultural exceptionalism often fail to discuss his political, religious, or influential life experiences in their analysis. Those that attempt a more robust explanation attribute the tie between Jefferson and agricultural exceptionalism to his agrarian ideal of the yeoman farmer. As this version of the narrative goes, Jeffersonian democracy's exaltation of the yeoman farmer was a rebuke to more aristocratic forms of governance and social hierarchy. Jefferson imagined a narrative hero in the yeoman farmer, the citizen who would best uphold the ideals of life, liberty, and the pursuit of happiness. But, as American Historian Richard Hofstader notes:

[W]hat the articulate people who talked and wrote about farmers and farming-- the preachers, poets, philosophers, writers, and statesmen--liked about American farming was not, in every respect, what the typical working farmer liked. For the articulate people were drawn irresistibly to the noncommercial, non-pecuniary, self-sufficient aspect of American farm life. To them it was an ideal.

And an ideal it truly was, for a brief look into Jefferson and the world he inhabited reveals a much more insidious truth.

Scholars that discuss New-Deal-era legislation as the origin of agricultural exceptionalism ordinarily focus on the inherently discriminatory nature of agricultural exceptionalism. Citation to the New Deal era is most found in pieces discussing issues of race and class inherent in American agriculture. As legal scholar of agricultural labor Joan D. Flocks explains agricultural exceptionalism's manifestation during the New Deal, many of these labor regulations:

[E]merged during a historical time in the U.S. when institutional discrimination was accepted and prevalent ... Congress failed to extend their protections to farmworkers under the doctrine of agricultural exceptionalism--a practice that historically emerged from negotiations between Southern politicians seeking to protect agriculture's access to cheap labor (which at the time was predominately African-American) and Franklin D. Roosevelt's administration attempting to promote New Deal social and economic reform.

Thus, New Deal politics were woven into agricultural exceptionalism, but was not its origin.

Though a few pieces provide substantial chronological analysis of the New Deal era origination of agricultural exceptionalism, most leave the discussion at the level of stating how and when the policy took hold in the United States. When a policy creates such an egregious level of harm wrought upon both the land and the people, especially when concerning something so central to survival as agriculture, a more extensive examination of its history is required. Absent a more robust exploration into the motives that fuel such an attachment to the imagery painted by Thomas Jefferson and post-war agricultural regulation, the scope and extent of the harmful effects of agricultural exceptionalism in United States law will not be fully realized. The country will remain blind to the philosophical underpinnings of agricultural exceptionalism which are driving the injustices of the United States' mode of agricultural regulation. Without a critical examination of the practice of agricultural exceptionalism, American society will continue “the historic trend of selecting politically and socially vulnerable groups as the laborers of food systems.” And, in doing so, we will only pursue “alternatives that remain embedded in severe forms of racial and class injustice ... and fail to give sufficient dignity to the hands that feed us.” While race and class are inseparable from our agricultural system and thus its regulation, attributing the origin of agricultural exceptionalism to as recently as the New Deal neglects the roots of such a poisonous tree by pointing only to the rotting apple on the ground.

The call for a more thorough analysis of agricultural exceptionalism is (at the very least) 30 years old. Nearly four decades ago, author Robert Thomas warned that “without a systematic analysis of the demand for labor--and with it, scrutiny of the mythology of agricultural exceptionalism--proposals for an undifferentiated solution to the problem of labor supply may well exacerbate the problems which exist already.” This appeal for critical analysis, from a short commentary published in 1986, notes the discrepancies between the reality of the agricultural system and how it was discussed:

First, it is suggested that the agricultural firms (especially those which engage in fruit and vegetable production) are predominantly small, family-based enterprises. The survival of these firms is seen to be directly tied to the price of the labor they employ to cultivate and harvest their crops ... Second, agricultural exceptionalism suggests that the perishability of crops and the volatility of the markets makes a reliable supply of labor essential to the survival of farm enterprises ... Yet, overlooked is the substantial variability in the economic structure of the fruit and vegetable industries ... [and] Third, agricultural exceptionalism implied that the demand for farm labor is relatively undifferentiated in terms of skill or crop-specific experience. Yet, recent research ... indicates a remarkable variety in work organization across crops, with some harvests requiring substantial skill and job experience to be economically efficient and to produce a consistently high-quality crop.

Despite being written so long ago, these criticisms of agricultural exceptionalism remain true and, unfortunately, perhaps even more salient than at the time of the 1986 publication. Significant advancement in agricultural technology and a massive shift toward large commercial agricultural enterprises in place of small family farms has occurred throughout our nation's development. Regardless of the justification set forth, none fully encompass the concepts and ideologies that gave rise to agricultural exceptionalism nor when agricultural exceptionalism originated. Tracing the origins of agricultural exceptionalism only back so far as the 1930s reveals merely a fraction of the foundation upon which agricultural policy has been constructed. It is not only this “nation's memory” of “the [agricultural] sector's economic, social, and cultural primacy in the earliest periods of American legal history,” nor is it due to “its close linkages with the quintessentially American mythology of bootstrap individualism.” Even those scholars that harken back to the late 1700s do not peer far back enough into our history.

To craft a viable agricultural policy that serves more equitable and historically honest goals, a deeper analysis of agricultural exceptionalism overtime is required. If scholars wish to identify an accurate origin of agricultural exceptionalism (of which there may be more than one, which is important to note) and fully comprehend the forms it now takes in agricultural policy, it is academically unwise to attribute such a pervasive, powerful theme to a sole era or person. To suggest that ideological notions of any nature are either static or certain obfuscates reality and, consequently, hinders a more egalitarian food and agriculture system. As the noted Intellectual Historian Jennifer Ratner-Rosenhagen explains:

Intellectual history seeks to understand where certain persistent concerns in American thought have come from and why some ideas, which were important in the past, have faded from view ... For an intellectual historian, the context of the idea is as important as the idea itself ... Its approach to economic history might be to investigate how economists interpreted the cause of a financial downturn or how employed laborers made sense of their difficult circumstances. And its approach to the history of the environment might consider the arguments environmental activists used to try to protect endangered species or the way a poet draws symbols from nature in her or his work.

In other words, the goal of intellectual history is to recognize the dynamics of individuals and their theories as both evolve. Ideas, including the values and presumptions inherent in agricultural exceptionalism, “are historical forces that move--and thereby change--from one interlocutor to another, one place to another, and even one time period to another.” This change is not an explicitly progressive one and does not ensure that conditions are perfected over time. More so, the change refers to how individuals and ideas adapt, and in this case, how insidious forms of social relations like hierarchical agriculture persist and remain palatable over millennia.

Though many different camps of intellectual historians exist--some using a contextual approach, others a more structuralist approach--this paper tends to err on the side of a structuralist interpretation given the lack of a sole legal text for one to dissect. Rather, agricultural exceptionalism is more amorphous, requiring multiple informative sources tangential and/or related to the concept. Much like intellectual historians have attempted to demonstrate in other industries, this paper's:

central premise [is] that a principal purpose of legal thought is ‘to deny the truth of our painfully contradictory feelings about the actual state of relations between persons in our social world'--in other words, to disguise or to ‘mediate’ a ‘fundamental contradiction’ that afflicts American culture as a whole and taints the lives of all its members.

Agricultural exceptionalism poses one such contradiction.

This article takes the approach of intellectual history and applies it to the pervasive notion of agricultural exceptionalism in United States agricultural regulation comprehensively discussing the two periods identified in scholarship as central to agricultural exceptionalism: (1) agricultural regulation in the colonial and neonate United States and (2) the significant reformations to agricultural regulation made in the New Deal era. In further and more broadly establishing these proposed origins, the article will focus on the philosophical forces that inspired the creation of a now ossified regulatory system steeped in agricultural exceptionalism.

The first part of this article will begin with a brief overview of what agricultural practices persisted in Colonial and early America to identify the reality of farming during the founding era. This section will also provide a discussion of Thomas Jefferson's promotion of agrarian democracy and explain the origination of the elusive “yeoman farmer” now extolled in agricultural regulation. In doing so, the section will examine both Greco-Roman cultural influences that took hold in the neonate United States as the nation crafted its regulatory structure, such as the attachment to the virtue that farming and provide individuals and their community. Additionally, the article will describe the powerful authority French Physiocrats and Enlightenment philosophers held in the minds of the American political elites who determined how to structure the United States government and, necessarily, how agriculture would support it. These philosophical trends reveal the true nature of agricultural exceptionalism at its “genesis,” one far more capitalistic than humanistic.

The second part of this article will then describe the subjugation of traditional notions of agrarianism to the perceived merits of industrialism during the period of westward expansion in the United States and how, during this period, agricultural exceptionalism took an even more significant hold on United States agriculture in New Deal legislation. This portion will demonstrate how understandings of land ownership and distribution altered and reinforced an agricultural regulatory system focused on the cultivation of money and prowess over virtue and community well-being during the New Deal era. This section will demonstrate how, rather than taking up farming and moving westward for the fulfilling and virtuous life it offered, Americans made virtue out of necessity farming operations struggling with depleted soil health, westward migration presented a more viable livelihood than suffering from the effects of degraded soil. Further solidifying the role of race and socioeconomic status in the American agricultural system was the New Deal legislation that followed. New Deal policies such as the National Labor Relations Act and the Fair Labor Standards Act were geared toward remaking American farm life and crafting a uniquely American farmer identity that better fit the Jeffersonian ideal, and put that identity to use in service to the nation. Indeed, we did end up with a Jeffersonian regulatory structure for agriculture, but its nature is not that of the one praised by agricultural exceptionalism.

Finally, the article will conclude with a discussion of how such a blind devotion to the rhetoric of agricultural exceptionalism, even in the face of clear and grave injustice to farmworkers and the land, has led to the present-day erasure of the needs and rights of essential workers in the United States agricultural system. Despite the perils of agricultural workers being known and the workers abused for centuries, before 2020, agricultural workers only occasionally made mainstream news headlines. Though the vastly undocumented population of agricultural workers constitutes the large portion of United States agricultural labor, only recently have American politics acknowledged the growing chasm between the reality of essential workers' working conditions and the rhetoric describing their role in society. In filling this chasm, it is not simply the replacement of industrial agriculture with “more moral” local and regional producers that will rectify farmworker injustices. Research has shown that the “‘imagined community’ of local food reflects the white, patriarchal, and heteronormative presumptions of the underlying agrarian imaginary in a way that advocates of local food may not necessarily recognize or intend--but will defend nonetheless.” It is only an overhaul of our fundamental understanding and connection to agricultural production that can begin reparations.

With increasingly concerning issues of climate change and the social/political divide escalating in our world, reformation of several societal systems is necessary, not the least of which is agriculture and the regulation of its production. It is still possible to construct an agricultural policy that “aligns agriculture with a progressive template that exemplified and engrained a larger ‘American’ identity--one anchored in democratization, growth, and efficiency in both farm communities and among the American people more broadly.” The default of agricultural exceptionalism is to create social stratification and racial strife. It must, instead, be to promote communal and individual equity and justice.

[. . .]

Regardless of how agricultural essentialism replaces the ills of agricultural exceptionalism, the transformation of the agricultural system, how we regulate it, and the lives of farmworkers is assured as climate change persists. The Intergovernmental Panel on Climate Change (IPCC) unequivocally concluded this year that drought, floods, and other adverse weather events will have a significant impact on agricultural production. Beyond the environmental loss, dangerous farmworker conditions are likewise guaranteed to intensify. The panel predicts that “extreme heat thresholds relevant to agriculture and health are projected to be exceeded more frequently at higher global warming levels (high confidence ” Our collective wellbeing hinges upon how we will respond to these inevitable challenges. Rectification of a policy of agricultural exceptionalism is one place to begin. What Jefferson did rightly conclude was that those who participate in agricultural production uphold the heart of American democracy and society-- farmworkers are essential, and agricultural policy and regulations must treat them as such.

J.D., LL.M., Postdoctoral Legal Research Associate, Bock Agricultural Law and Policy Program, University of Illinois at Urbana-Champaign.