Dorothy Day Caucus of the American Solidarity Party A Revolution of the Heart
Welcome back to Supreme Court Sunday! Today’s case is about the Commerce Clause and it drives some people crazy.
Have you ever wondered why the Commerce Clause gives the Federal Government the power to regulate everything from recreational drug use to racial discrimination? The answer goes back to a stubborn Ohio farmer named Roscoe Filburn.
To back up, the Commerce Clause is article 1, section 8, clause 3 of the U.S. Constitution which states that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That was originally a straight forward power; for example, the founders envisioned a scenario where your train runs from Maryland to Pennsylvania and Congress can mediate the dispute between the laws of Maryland and Pennsylvania where they conflict.
The case which changed that narrow reading of the commerce clause started in June of 1940 when some agents of the government came to Roscoe Filburn’s farm. They were there to help.
You see, the nation had been reeling from the dust bowl and the Great Depression and the U.S. Department of Agriculture decided to put a price floor on wheat. Because that price floor takes us out of the normal framework of supply and demand, the price floor had to be accompanied by limits on wheat production. Fines were issued on any wheat produced over a certain threshold.
Roscoe Filburn exceeded his wheat quota and he was fined. The problem as Mr. Filburn saw it, was that he wasn’t selling his wheat, he was feeding the wheat to his livestock. Mr. Filburn sued the federal government claiming that they had no right to say anything about wheat that isn’t being used in interstate commerce, and in fact never reaches the market at all.
The unanimous opinion of the Court delivered by Justice Robert H. Jackson concluded that Mr. Filburn’s actions could be regulated as they constituted a sort of “negative commerce.” That is to say, Mr. Filburn was engaging in a commercial activity because if he had not grown his own feed he would have bought wheat off of the open market to feed his livestock. They also noted that if every farmer grew his own excess wheat the grain market would be severely depressed.
This case would continue to be expanded over the subsequent decades, but Wickard v. Filburn was really the seminal moment where every aspect of our lives became “interstate commerce.”
I know I’m not alone in seeing this case as something of a headscratcher. Am I engaging in interstate commerce when I sew a dress rather than buy one, or nurse my baby rather than buying formula? It feels like the same thing to me, and we are all in agreement that there are at least some areas of our collective lives with which the Federal Government has no business interfering.
That said, the Federal Government needs to have poverty alleviation programs with teeth and the wheat quotas were an essential part of that program. Also, this case directly opened the door for the Federal Government to address segregation and Jim Crow laws as applicable to interstate commerce, and I think we can all agree that the end of Jim Crow was a moral victory, if somewhat delayed.
What do you think? Should we have found another route for the Federal Government to step in to end injustices? Do you feel as bad as I do for poor Roscoe Filburn? Let me know in the comments!
 Not really.
Tara Ann Thieke