Gardens and Abusing the Commerce Clause

From the Truth-is-Stranger-than-Fiction file…

In my last post, I (via Judge Napolitano) mentioned that the government has even “skulked into” our backyards (literally). The backdrop for this particular incident is the Great Depression, and the federal government has imposed artificial restrictions on farm production of wheat — “a problem industry for some years” — via the Agricultural Adjustment Act of 1938 in order to keep prices up in the open market.

Judge Napolitano lays it out (in Lies the Government Told You):

“You would think that if you grew something in your own backyard, for your own personal use, the government would not meddle. Guess again! In 1940, the federal government fined Roscoe Filburn, an Ohio farmer, for producing an excess amount of wheat on his farm. The government’s act of limiting the amount of wheat Filburn grew and then actually punishing him for it, seems like a gross restriction on individual liberty in itself. But the situation gets downright ridiculous when you consider that Filburn was not selling this wheat, not bartering with it, not leaving the State with it; poor Filburn was just growing the wheat for himself and his family to use. Now imagine how outraged you would be if the government regulated the parsley you grew in your backyard garden, or the summer tomatoes you planted. You get the picture. This ruling is simply a violation of the natural right to the fruits of one’s lawful labors.wheat

The Supreme Court used and abused the power of the Commerce Clause against Filburn in this case. The Commerce Clause gives the federal government the right to regulate commerce with foreign nations, among the states, and with the Native American tribes. While the Court’s interpretation of ‘among the states’ has varied over the years, one of the main reasons for the clause was to prevent excessive competition between the states. The original meaning of the word regulate was ‘to keep regular.’ Its sole purpose was to prevent states from creating state tariffs to be used to the detriment of other states.

So, basically, the Commerce Clause was intended to empower Congress to keep interstate commerce regular, that is, devoid of tariffs imposed on the movement of goods over interstate borders by the states. Such tariffs had severely hampered commerce under the Articles of Confederation and were a major impetus for drafting the U.S. Constitution. Some of the broader interpretations of the Clause have included intrastate commerce that could have an effect on interstate commerce. Yet, who would have guessed that the government could regulate something that goes from your backyard to your kitchen table and is never actually bought or sold or moved more than a few feet?

The government’s argument was that through the cumulative effect of Filburn’s use of his own wheat, and others’ potentially similar use of theirs, there might or could be an effect on interstate commerce, and that these activities were therefore subject to federal regulation. This means that if lots of people started to overproduce wheat in their backyards and consume it, it could affect the amount of bread or cereal that is being bought (or not bought) in stores. But, that is a big if. Also, the act of growing crops to provide for your own family has been going on much longer than the government itself. This harebrained reasoning employed by the government and accepted by the Supreme Court, paired with the destruction of the personal property rights conferred through Natural Law, make Wickard v. Filburn one of the more truly absurd and highly dangerous federal power trips.”

Doesn’t that just ‘eat your lunch’?!!

Think about it. The issue wasn’t whether or not Filburn broke the law. He admitted it. The issue was over the propriety and constitutionality of the Act’s acreage restrictions. Voting 8-0 (with Justice Byrnes absent), SCOTUS invoked the Commerce Clause to give Congress the authority to tell you not only how much you can produce but how much of it you can use for your own purposes. In effect, it became illegal to be self-sufficient, because of a potential, cumulative effect on the economy.

Now, I understand that the wheat industry in particular was vulnerable due to a large surplus resulting from declines in exports. But, this feels like a quick-n-dirty, “easy” fix that should have been better thought out. It’s like using a wrecking ball to hammer in a tack — HUGE unintended consequences. The Commerce Clause is one of the most abused sections of U.S. Law, and this is easily one of the worst (best?) examples. Unbelievable!

If Filburn had cooperated with the Act rather than producing over twice his allotment, he would have averaged $1.16/bushel — nearly triple the world market price — for the 11.1 acres he legally harvested. I’m not sure if this would have been enough to then purchase his family’s and farm’s needs at retail, but somehow I suspect his rebellion was based more on principle and to challenge an unfair law, anyway.

As far as I can tell, the Filburn ruling still stands. In fact, it is currently used to justify regulation of medicinal marijuana production — the subject of a whole ‘nother batch of legal & moral questions. (Do you think the ability to tax said product is a concern? Hmmm…)

I would be very curious to see a similar case presented to the current Supreme Court. I tend to think that it would not pass muster and Filburn might actually be neutralized or reversed (as long as Justice Kennedy was thinking clearly and rationally that day), especially since we aren’t nearly as bad off as in the Great Depression. But, who knows….?

P.S.  Happy New Year, everyone!


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