[In my last post, I told the story of Roscoe Filburn, the Ohio farmer who was fined for growing his own wheat. In this post, I tell the story of how the Federal Government got the power to fine Roscoe. The last post in the series will tell the story of limitations finally being applied to that power.]

“The natural progress of things is for liberty to yield and government to gain ground.” Thomas Jefferson, letter to Edward Carrington, Paris, May 27, 1788.

Jefferson saw the growth of government as water collecting on a flat roof. It will find the slightest crack and, over time, work its way in with greater and greater consequences. That is how the Federal Government gained the power to fine Roscoe Filburn.

Before the Constitution, the Articles of Confederation had created a commerce environment which invited every State to discourage trade with other States in order to protect their own products. And, that’s what they did, at the expense of economic growth.

The Founders wrote the Interstate Commerce clause of the Constitution to put an end to that. This clause said simply, “The Congress shall have the power… to regulate commerce… among the several States…”

We know from the Federalist Papers and other writings that, by “commerce,” the Founders meant the transport or movement of goods and not their production. So, the Interstate Commerce clause gave Congress the power only to pass laws regulating transport between states.

After the Supreme Court gave itself power to interpret law and the Constitution in Marbury v. Madison, it wasn’t long before the first case under the Interstate Commerce clause came to them.

In 1808, the State of New York had granted to Robert Livingston and Robert Fulton (inventors of the steamboat) the sole right to ship goods to and from New York by water – a monopoly. Livingston and Fulton sold a franchise to Aaron Ogden and Thomas Gibbons in 1815 to operate steamboats across the Hudson River to New Jersey.

In 1818, Gibbons broke off from Ogden and began operating his own steamboat between New York and New Jersey in violation of the New York monopoly law. Ogden sued Gibbons and the case went to the Supreme Court.

The Supreme Court struck down the New York monopoly as a restraint of interstate commerce under the Interstate Commerce clause. In so doing, the Court ruled that the power to regulate interstate commerce is, “complete in itself… and acknowledges no limitations,” other than those spelled out in the Constitution. That was all Congress needed to expand its power in the ensuing years, like water into a roof crack.

The Northern Belle was a passenger steamboat that operated within Iowa as a private company in the 1860’s. It also carried products within Iowa that had been shipped from other states or were to be shipped to other states. Federal Government agents inspected those products as goods in interstate commerce and insisted that the vessel was subject to other regulations on interstate commerce. The Northern Belle company sued and the case reached the Supreme Court in 1870 in Northern Belle v Robson.

In Robson, the Supreme Court found in favor of the Federal Government and granted the inspection and regulation powers under the Interstate Commerce clause. The Court ruled that, despite operating only within the state, the Northern Belle’s transport of products that had come from other states or could go to other states meant that it had a potential impact on interstate commerce. So, interstate commerce then included the handling of anything produced in another state.

The Robson case opened the door for Congress to adopt more sweeping powers. In 1887, the Interstate Commerce Commission was created. Along with its creation, the law gave the Commission the power to force the railroads into an association for the purpose of regulating prices and practices.

Then, in 1890 Congress passed the Sherman Act, a law that prohibited companies from cooperating to set prices and create monopolies. It should be noted that the Sherman Act took no action against regulation and price fixing by the Interstate Commerce Commission. So, Congress could regulate commerce and fix prices, but private companies could not.

Now, it was not a straight line from there to Congressional omnipotence. In 1895 in US v EC Knight, the Supreme Court stopped the Federal Government from using the Sherman Act to prevent a merger of sugar refineries. And, in 1918 in Hammer v Dagenhart, the Court ruled that the Commerce clause didn’t extend to control of states in their use of police power over local manufacturing. But, the water kept searching for more cracks and, in 1937 it found another.

In NLRB v Jones and Laughlin Steel, the Supreme Court upheld the National Labor Relations Act and, in so doing, forced employers to engage in collective bargaining. While Jones and Laughlin made steel in-state, the Court ruled that the actions and materials necessary for that had an effect on interstate commerce. They ruled that having an effect on commerce meant “…tending to lead to a labor dispute burdening or obstructing commerce.”

The final straw leading to the fining of Roscoe Filburn came in 1942 with the Wrightwood Dairy case. The Secretary of Agriculture had set prices for milk sold strictly within a state. The Supreme Court upheld the Secretary’s action ruling that, “The marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter.”

Wrightwood Dairy opened the way for the Federal Government to control all commerce and production. But, what about activities that are not commerce? That’s where Roscoe Filburn came in. He simply grew a little wheat for his own use and got fined for it because, in so doing, he removed himself from the commerce of buying from someone else, thus theoretically reducing demand and price (see my blog – The Story of Poor Roscoe Filburn).

Is there, then, no limit on the power of Congress to control our lives? In my last blog on the subject, I’ll tell the story of recent assumptions of power and of the first traces of the Supreme Court saying “far enough.”