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Thursday, March 22, 2012

What the Founding Fathers would have thought of Wickard v. Filburn

As the time draws near for the U.S. Supreme court to wade into the murky depths of Obamacare, much of the informed discussion touches on a precedent seventy years old, Wickard v. Filburn. This case, the high water mark (to date) of federal regulation of commercial activity, grew out of Depression era wage and price controls. Farmer Roscoe Filburn grew wheat for use on his own farm. He grew more wheat than the federal regulations allowed, so he was ordered to destroy his crop -- perfectly good wheat -- and pay a fine. The alleged authority for this order: Article I, Section 8 of the U.S. Constitution, which states that "[t]he Congress shall have Power . . . to regulate commerce with foreign Nations, and among the several States, and with the Indiana tribes."

A bit of background: our federal government, believe it or not, is supposed to be a government of explicitly delineated limited powers. The default, as it were, is: "The federal government can't do that." Congress may only legislate to carry out one of the powers listed in the Constitution. It may pass laws necessary to the exercise of one of those powers, so long as the law is also "proper" -- appropriate -- for Congressional action (i.e., doesn't violate any rights or other constitutional provisions).

Back to Roscoe Filburn. He wasn't selling wheat across state lines. He wasn't selling it at all. He was growing it to feed his chickens, or whatever. Where did Congress get the authority to tell him how much wheat he could grow for his own use?

Well, the Court held, because ol' Roscoe grew so much wheat, he didn't have to buy any. And because he didn't have to buy wheat to feed his chickens, that reduced the demand for chicken feed. And when he and other farmers met their own needs and reduced demand, that affected the price of wheat. And people sell wheat across state lines. So . . . burn that wheat, buddy!

Now back to Obamacare. As the New York Times recently explained, the folks defending Obamacare say Wickard v. Filburn shows that the feds can make anyone do just about anything as long as there's some connection to interstate commerce. The opposing view: that as much as the case stretched the boundaries of the Commerce Clause, it at least approved regulation of activity, rather than imposing a penalty on inactivity.

Well, we can stare into lamb entrails (or should it be chicken gizzards?) and try to predict how the Supreme Court will apply Wickard v. Filburn to Obamacare. But for a moment, let's indulge in the pleasant fantasy that the Court will instead pull up its collective suspenders and do what it should have done every year since 1942: show some respect for the U.S. Constitution and overrule Wickard v. Filburn.

Can anyone seriously believe for a moment that the revolutionaries who founded this nation, who fought for freedom from monarchic authority and established an elaborate system of checks and balances to restrain government power, intended the central government to be able to interfere in the daily doings of Americans in this manner?

If George III had insisted colonists destroy their own wheat and pay a penalty for growing it, you can bet your Liberty Bell that the "Injuries and Usurpations" detailed in the Declaration of Independence would have included something like this:

"He has dared to penalize the self-reliance and honest Industry of our Citizens, by demanding the Wanton Destruction of grain grown to feed their own livestock, and further imposing financial Penalties for the production of such grain, because his preferred Merchants have thereby lost the Opportunity to extort exorbitant prices for the grain in their own Stores."

And can you picture Benjamin Franklin asking James Madison: "James, as to that provision according Congress the power to 'regulate Commerce . . . among the several States': might that allow Congress to order a farmer to limit his grain harvest, so that he will need to buy more wheat, which will in some small measure affect the price of any wheat sold across the boundary between one state and another?"

Would not Madison have replied, "Benjamin, have you been smoking General Washington's hemp again?"

And as for the notion that those poor simpletons the Founding Fathers didn't really understand economics and political systems nearly as well as our current crop of politicians . . . need I say more?

The debate over Obamacare has shown us that Wickard v. Filburn serves as an invitation to ever more ambitious departures from the principles of limited government. Please, ladies and gentlemen, honorable Justices: do the right thing. Overrule this perverse precedent. You'll sleep better. And maybe Benjamin Franklin, James Madison et al. can rest in peace.