The Story of Poor Roscoe Filburn

[This is the first of a three-part post on how the Interstate Commerce clause has been stretched to extend the power and authority of the Federal Government beyond its Constitutional limits.]

Roscoe Filburn was an Ohio farmer who got steamrolled in 1942 by the Federal Government and the U.S. Supreme Court under the Interstate Commerce clause of the Constitution.

Roscoe had a small farm on which he planted about 24 acres in wheat. Of that, he sold 12 acres’ worth and kept the rest for his livestock and for his own consumption.

In 1940, the Federal Government, under the authority of the New Deal’s Agricultural Adjustment Act, ordered Roscoe to plant no more than 11 acres in wheat. The goal was to keep prices high through scarcity and each farmer, big and small, had a limit calculated for them by the Federal Government.

When the Federal Government learned that Roscoe had exceeded his limit, they fined him (imagine the extent of inspection for them to have found that out). Roscoe refused to pay and the government took him to court, reaching the Supreme Court in 1942 in a case named Wickard v. Filburn.

Roscoe argued that the wheat he had grown above the government’s limit was for his own use and, therefore, did not affect interstate commerce. Accordingly, he said, the Interstate Commerce clause of the Constitution did not apply.

The Federal Government made two claims. First, they claimed that, because Roscoe had grown extra wheat for himself, he did not have to buy it – thus lowering the demand for wheat on the open market and, thereby, affecting interstate commerce and the government’s authority.

Second, the Federal Government claimed that Roscoe could have sold the extra wheat instead of using it himself. This would have put 13 additional acres worth of wheat on the market – thus lowering the price for wheat generally and, thereby, affecting interstate commerce and the government’s authority as well.

By 1942, the Supreme Court had membership that was very much to the Federal Government’s liking. While President Franklin Roosevelt’s earlier attempt to pack the Court with extra judges was found unconstitutional, he was able to appoint like-minded judges to vacancies which came up in the interim.

This Court ruled against Roscoe unanimously. In their Opinion, they said that, by growing his own wheat, he was competing with wheat in the open market and, therefore, was engaging in interstate commerce.

The Court went further to say that the denial of Roscoe’s individual right to feed himself and his family was justified in order to protect the interests of all the other farmers in the country, i.e. price supports. The Federal Government’s authority to control individuals’ lives to such an extent was upheld.

But, you might say, principle of governmental authority aside, this was only a tiny, tiny amount compared with all the wheat grown and put up for sale. The Court said that it didn’t matter. Under the Court’s interpretation, it is the nature of the thing that is at issue, not the extent. Roscoe could have grown only a quarter of an acre more and the Court still could have ruled against him. This allowed the Court to weigh the theoretical total effect of all farmers’ personal use wheat on the market, not just Roscoe’s alone. In other words, if we let one “get away with it,” they’ll all do it.

Now, what if Roscoe had sold his extra wheat instead of keeping it for himself? An amount that small, including that of farmers in other localities, would have gone into local markets, thus making it intrastate commerce and not interstate commerce. But, by that time, Supreme Court decisions had chipped away any notion that there was a strictly intrastate commerce market in any product that could be found in more than one place. The Court ruled that Roscoe’s wheat would have had “a substantial effect in defeating and obstructing (the Government’s) purpose.”

The Supreme Court’s ruling in Roscoe’s case opened the door to governmental regulation of virtually all economic activity through the Interstate Commerce clause. In fact, much of modern social interaction has now been found by the Supreme Court to be interstate commerce and, thus subject to control by the Federal Government. Union strikes on local businesses? Interstate commerce. Product safety? Interstate commerce. Civil Rights legislation? Interstate commerce. The growth of ones own medical marijuana? Interstate commerce,too. Until, that is, Alfonso Lopez, Jr. brought a pistol into his high school in 1992. We’ll get into all that in my next post on the subject.

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