Today in Supreme Court History: November 9, 1942

11/9/1942: Wickard v. Filburn decided.

The Stone Court (1941-1942)

Comments

[Dan Schiavetta]

You can see from the photo how fast the Court's membership had changed. Black, who had only been there five years, is sitting next to the Chief Justice.

[The Turtle Dove]

https://www.youtube.com/watch?v=FyZkp7EX7LU

Mr. D.

[Brett Bellmore]

A day that will live in infamy.

[Sarcastr0]

Among people with more ideology than sense. Not outside of that.

Like those who inveigh against the 17th Amendment, or about the ratification of the 14th, Wickard rage has proven to be more about belonging via hipster partisan cred than anything with real-world implications.

[PeteRR]

So you're okay with the commerce clause as interpreted in Wickard? Essentially that everything is under the purview of the federal government.

[Krychek_2]

Wickard is a plausible interpretation of the Commerce Clause. And Wickard acknowledges the political reality that most Americans want an expanded role for the federal government, even if they lack the necessary 2/3 vote in Congress and 3/4 of the states to amend the Constitution. So yes, even though Wickard has sometimes been stretched further than I would like, overall I can live with it.

[Sarcastr0]

Lopez and Morrison say otherwise.

[Ghost of Patrick Henry]

Wicked was the death of the Founder's vision. Shoukd be overruled to bring Constitutional balance and true Federalism back to America.

[bernard11]

If Wickard stands for the idea that regulation of interstate commerce sometimes necessitates regulation of intrastate activity then it was rightly decided.

[Sarcastr0]

What kind of America do the anti-Wickard folks envision? What modern nation could function within that dubious constraint?

Stuff like this is a completely reality-divorced windmill tilting.
Virtue signaling, if you will.

[Brett Bellmore]

Sarcastro, your failure of imagination really doesn't say anything about the legitimacy of Wickard.

[Sarcastr0]

On the contrary, I've actually done the work of considering how a non-Wickard America would function.

You, on the other hand, seem to be stuck in some utopian libertarian thinking and not really considering practicalities.

[Brett Bellmore]

I'm quite sure that you don't like the idea of a non-Wikard America. But what makes you think it's impossible, rather than just undesirable from your own perspective?

[Krychek_2]

I suppose it depends on how broadly you interpret "impossible". It would completely upend our economy. I will say that if your conservative majority Supreme Court were to actually overrule Wickard, the damage to our economy would be so monumental that there would probably be a constitutional amendment reinstating it in no time flat.

Plus who are you kidding? Conservatives love Wickard just as much as liberals do. They want to be able to continue to wage the war on drugs, and pornography. Strom Thurmond loved it because his anti-alcohol Baptist sentiments permitted him to severely restrict alcohol advertising. You may wish to regulate different things than liberals do, but you'd hate losing the power to regulate as much as we would.

[Sarcastr0]

You cannot have a unified national economy without Wickard.
No harmonized regulations on labor, or goods.
No FDA, EPA, FCC, etc.

Sure, libertarians are dumb enough to cheer that on, but anyone who has managed any sort of organization can see how divided like that, we would fall into an inefficient, squabbling backwater.

[Brett Bellmore]

OK, still waiting on the problem.

[Sarcastr0]

As I said, you're not a man restrained by practicalities.

[Brett Bellmore]

You're confusing your preferences with "practicalities".

[Krychek_2]

LA LA LA LA LA I CAN'T HEAR YOU!!!!!!

[Harvey Mosley]

I want the war on drugs, pornography, gambling, and prostitution to end. I also wish Wickard would be over turned. There is nothing I can think of that needs Wickard that I want. Maybe it's a lack of imagination on my part. Can you give me examples of things that I can't imagine that would be so disastrous?

[Sarcastr0]

Having an economy that's competitive on the global level.

[Kazinski]

The kind of America I want allows a farmer to grow wheat on his own land and feed it to his own cattle without a bureaucrat 1000 miles away telling him he can't.

Not to mention that the central planning quotas of depression economics being imposed by those bureaucrats has been totally discredited and illustrates that that kind of regulatory power does a lot more harm than good.

[Brett Bellmore]

But it doesn't stand for that idea. There are plenty of regulations of intrastate activity that can be justified on that basis, because state borders are essentially one dimensional, any activity at all involved in regulation of interstate commerce is taking place within a state. For instance, record keeping requirements to distinguish intra and interstate shipments.

The problem with Wickard was that the regulation in this case wasn't necessary to effectuate the regulation of interstate commerce. It was necessary to effectuate the objective of the regulation: Raising the price of wheat!

The regulation itself could have been essentially 100% accomplished without Wickard, it just wouldn't have achieved its intended purpose, because so long as intrastate commerce in wheat wasn't reached, the price of wheat in wheat producing states would be beyond the reach of the federal government.

Wickard didn't do squat to enable regulation of interstate commerce. Regulating use of wheat on a farm was neither necessary nor proper to regulating interstate commerce. It was necessary to regulating the price of wheat within a single state.

[Dan Schiavetta]

All those loaves of bread stopped at the state border. It really is a shame. Full loaves are separated from the little Parker House rolls, and not even kept in properly refrigerated cages. Some are developing mold. I think it's an underreported story.

[Kevin Smith]

What if Wickard stands for the idea that regulation of interstate commerce means the government can regulate anything it wants to, and in any way it wants to?

[Brett Bellmore]

It essentially does stand for that, with a 'magic words' test required to invoke the power. If something effects interstate commerce, or relies on anything that might have moved in interstate commerce, Congress can regulate it, so long as they say they're doing it to make their regulation of actual interstate commerce effective.

King Canute should have had so much power: The tides effect interstate commerce, after all.

[Vaclav Matthess]

The date the Supremes adopted the Butterfly Effect as a constitutional doctrine.

[Commenter_XY]

Off Topic...Just want to say that the Religious liberties symposium just concluded. It was phenomenal.

Kudos to Professor Volokh, and his fellow panelists. GREAT discussion.

[Hugo S. Cunningham]

Did farmer Filburn sell the animals he was feeding on his excess grain into the interstate market? Government regulators would have a logical complaint.

But when the government shuts down the interstate market (eg Prohibition), the Commerce Clause should cease to apply to internal State markets.

[Kazinski]

If the government wanted to regulate his cattle when he sold them, make sure they were disease free, no hormones or pesticide residue, that's one thing.

But saying if he was going to feed them wheat, he had to buy it on the regulated wheat market, not grow it himself is socialist tyranny.

It's the same as saying I can't crawl under my sink and replace my garbage disposal, I've got to hire a plumber, or I can't mow my own lawn.