The Wrongful Wickard of Laws

Who is Roscoe Filburn? Though I tweaked the opening line from Rand’s Atlas Shrugged for my post I promise I won’t have you read 1100 pages, though in deference to Rand I may have to just once eschew my masculinity and caper around town in some cute little number and maybe do the Charleston while looking all hawt wearing one of Rand’s fab hats with matching cigarette holder as an accessory even though I don’t even smoke, and then immediately  check those testosterone pills the doc pushed on me to see if they’re placebos.

But who is Roscoe Filburn? Small town Southern lawyer? Bit player on Hee Haw? Maintenance man from my high school who slept in the boiler room? None of the above reader. In fact, Roscoe Filburn has a place in American Supreme Court history that makes him far more influential than even Mr. Ford, high school janitor par excellence. In fact one could argue Filburn’s flirtation with the Supreme Court is one of the most important legal cases in U.S. history in the sense that it allowed the Federal government to take a much larger role in our lives. (And isn’t that what we all want?) There’s a foundation with a website that is devoted to educating people about the case and you can check it out here. If you want to be a layabout and have me do that work for you and give you my interpretation of the whole thing then by all means keep reading. I’ll be your huckleberry.

Roscoe Filburn owned a 95 acre farm in Montgomery County, Ohio near Dayton and he came butt up against FDR and his overreaching Agricultural Adjustment Act (AAA) of 1938, which was implemented as an Attitude Adjustment Act with Filburn and the like being on the receiving end of said attitude adjustment. Under the AAA strict guidelines were set up that kept farmers from utilizing all the capacity of their land and livestock in an effort to restrict the amount of produce on the market and thus drive up prices.

Now the Constitution, that old grey lady, allowed Congress to regulate interstate commerce. Fair enough I suppose, but what it didn’t allow was for Congress to mess with commerce that took place within a state. So where does Filburn come in? Well here’s what happened. Filburn was allowed by the AAA to plant 11.1 acres of wheat based on the size of his farm but he planted 23 acres in the fall of 1940 which in turn yielded 239 bushels of wheat the following summer. Since Filburn overplanted he was fined 49 cents per bushel or one hundred seventeen dollars and eleven cents. “Well hell Gross, you’ve dropped that much in one four-hour encounter at the Brass Flamingo!” Not the point reader, not even close. It wasn’t the money it was about the principle. Some would argue that Filburn knew the rules and he broke them anyway and for the law-and-order types sometimes the legitimacy of the law is irrelevant. A law is a law, change it don’t break it. Okay I get that, I may even partially agree with that. But how do you change a law unless you challenge it and that’s what Filburn did. Oh, and one little thing I left out. Filburn wasn’t selling the extra wheat he grew. He was using it for his family and to feed his livestock. Hmm. (One eyebrow should be raised now with a look of inquisitiveness reader. I really shouldn’t have to keep cueing you for this kind of stuff.) So even though Congress was given the power to regulate interstate commerce, the AAA felt that it should be able to regulate Filburn’s activities based on his overplanted wheat that was neither commerce, nor traveling between states.

So who is the Wickard in the post title? Claude R. Wickard was the Secretary of Agriculture under FDR and he was the Wickard in the strange case of Wickard versus Filburn that was settled by the Supreme Court in 1942. The government’s argument basically went like this: Yes, Philburn is growing this wheat for his own use in order to feed his family and/or livestock (in some families they can be hard to tell apart) but, and it’s a big ol’ butt here, the fact that he doesn’t have to go on the open market and buy the wheat to feed his family and livestock does in fact affect interstate commerce and the Congress has the right to regulate that activity. The Feds admitted that the amount of wheat grown by Filburn was trivial but if a large number of farmers followed the same path as Filburn then they would adversely affect interstate commerce. If Filburn didn’t grow the excess wheat he would be forced to buy it on the open market and that wheat could possibly have crossed state lines, or perhaps not, but they felt safe making that argument. Now as we’ve already covered Filburn’s activity was neither technically interstate nor commerce but merely consumption. So Congress was aiming to regulate consumption that they believed could affect interstate commerce. Pretty twisted right? Never gonna fly right? Hang on.

Well it may break your crayon to learn this but the Court sided against Filburn. They stated in the Court’s words that yes,

Congress can regulate trivial local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power, even if the effect is indirect.

So there it is. If that isn’t a massive State imposing itself upon its citizens then nothing is. Keep in mind, this post of mine here says nothing about the whole idea of the Federal Government deciding how much of anything someone is allowed to produce or what they should be able to charge to sell their product. That in itself is ridiculous enough but that was the original function of the AAA before later morphing into a swell organization that provides road side assistance, travel planning, and great discounts to drivers.

So are we to believe that the framers of the Constitution, in all their powdered wig and buckled shoe foppish glory, intended for Congress to regulate activity that was neither interstate nor commerce and do so by calling it interstate commerce?

You know, framers like James Madison who said,

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

And with that I’ll give Jimbo the last word.

H.R. Gross