A few days ago, I wrote about Article 1, Section 8, of the Constitution, which lists the “enumerated powers” of the federal government. That post included a reference to Wickard v. Filburn, an infamous Supreme Court case that opened the door to unlimited intervention from Washington.
Why was this case important? As is so often the case, Sowell’s analysis is a model of clarity and common sense.
Thomas Sowell
Roscoe Filburn was an Ohio farmer who grew some wheat to feed his family and some farm animals. But the U.S. Department of Agriculture fined him for growing more wheat than he was allowed to grow under the Agricultural Adjustment Act of 1938, which was passed under Congress’ power to regulate interstate commerce. Filburn pointed out that his wheat wasn’t sold, so that it didn’t enter any commerce, interstate or otherwise. Therefore the federal government had no right to tell him how much wheat he grew on his own farm, and which never left his farm. The Tenth Amendment to the Constitution says that all powers not explicitly given to the federal government belong to the states or to the people. So you might think that Filburn was right. But the Supreme Court said otherwise. Even though the wheat on Filburn’s farm never entered the market, just the fact that “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market” meant that it affected interstate commerce. So did the fact that the home-grown wheat could potentially enter the market. The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment’s limitations on the powers of the federal government virtually disappeared.
So why was this case such a disaster? Sowell continues.
The implications of this kind of reasoning reached far beyond farmers and wheat. Once it was established that the federal government could regulate not only interstate commerce itself, but anything with any potential effect on interstate commerce, the Tenth Amendment’s limitations on the powers of the federal government virtually disappeared. Over the years, “interstate commerce” became magic words to justify almost any expansion of the federal government’s power, in defiance of the Tenth Amendment. That is what the Obama administration is depending on to get today’s Supreme Court to uphold its power to tell people that they have to buy the particular health insurance specified by the federal government.
Sowell identifies the bottom line.
The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope.
Many people have identified Plessy v. Ferguson, which allowed the racist imposition of separate-but-equal policies, as one of the worst decisions in Supreme Court history.
They’re right, but Wickard v. Filburn deserves a place on that list as well, only it enabled statism rather than racism.
International Liberty 
[…] because the Supreme Court, starting in the 1930s and culminating with the horrid Wickard v. Filburn case in 1942, largely abandoned its responsibility to limit the powers of […]
[…] because the Supreme Court, starting in the 1930s and culminating with the horrid Wickard v. Filburn case in 1942, largely abandoned its responsibility to limit the powers of […]
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[…] P.P.S. Yes, this implies limits on democracy. Our Founding Fathers, contrary to E.J. Dionne’s superficial analysis, were opposed to untrammeled majoritarianism and wanted to make sure 51 percent of the people couldn’t vote to rape and pillage 49 percent of the people. […]
[…] insurance (though that awful decision by Chief Justice John Roberts looks brilliant compared to the even-worse 1942 decision that gave Washington the power to control whether a farmer could grow grain on his own farm to feed […]
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[…] once the Supreme Court acquiesced to this perversion of the Constitution’s clear intent, any limits of federal power were swept away (evinced most recently by John Roberts’ tortured […]
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[…] like United States v. Carolene Products Co. ranks up there with Wickard v. Filburn as one of the Supreme Court’s worst […]
[…] Here’s some of what Thomas Sowell wrote about Wickard v […]
[…] outlines twelve terrible Supreme Court decisions that expanded the power of government (including Wickard v. Filburn and Kelo v City of New […]
[…] of the administrative state. And my fingers are crossed that he might vote with the Justices who want to restore the Constitution’s protection of economic […]
[…] of the administrative state. And my fingers are crossed that he might vote with the Justices who want to restore the Constitution’s protection of economic […]
Everyone wants to have their Federal cake, and eat it too. Wickard v Filburn said the Feds can do anything because we’re all interconnected (6 Degrees of Kevin Bacon!). Plessy v Ferguson said the only the States can regulate intra-State commerce, like “separate but equal” busses, but could intervene if the bus crossed State lines. Both decisions stunk.
[…] powers of the central government. This system worked remarkably well for a long period, but then the Supreme Court decided that the enumerated powers listed in the Constitution were just a […]
[…] and ratifying a constitution that placed firm limits on the power of government. Sadly, that system largely broke down in the 1930s and 1940s as the Supreme Court ceded its role of protecting economic liberty (with […]
[…] Woodrow Wilson and the so-called progressives, accelerated during the New Deal (ratified by the horrible Supreme Court decision in Wickard v. Filburn), and has intermittently continued in the post-World War II […]
[…] because his opposition to mobocracy is very selective. Has he ever criticized the Supreme Court for acquiescing to the New Deal and abandoning its obligation to limit Washington to the enumerated powers listed in the […]
[…] powers of the central government. This system worked remarkably well for a long period, but then the Supreme Court decided that the enumerated powers listed in the Constitution were just a […]
[…] population. And that’s an accurate description of how economic policy works in the United States ever since the Supreme Court decided to toss out the Constitution’s limits on the power of the federal […]
https://en.wikipedia.org/wiki/Wickard_v._Filburn says: “The issue was not how one characterized the activity as local, but rather whether the activity “exerts a substantial economic effect on interstate commerce”.”
The farmer’s miniscule excess production was found to exert a “substantial” economic effect, which proves that plain words are no barrier to people’s deliberate misunderstandings…
[…] And that’s an accurate description of how economic policy works in the United States ever since the Supreme Court decided to toss out the Constitution’s limits on the power of the federal […]
[…] once the Supreme Court acquiesced to this perversion of the Constitution’s clear intent, any limits of federal power were swept away (evinced most recently by John Roberts’ tortured […]
[…] be sure, the courts – including and especially the Supreme Court – have not done a good job in some areas. Ever since the 1930s, for instance, they’ve completely failed to limit the federal […]
[…] be sure, the courts – including and especially the Supreme Court – have not done a good job in some areas. Ever since the 1930s, for instance, they’ve completely failed to limit the […]
[…] programs exist today because the Supreme Court put ideology above the Constitution during the New Deal and, at least in the economic sphere, turned the nation from a constitutional republic into a […]
[…] programs exist today because the Supreme Court put ideology above the Constitution during the New Deal and, at least in the economic sphere, turned the nation from a constitutional republic into a […]
[…] P.S. As a big fan of Professor Sowell, I’ve cited his columns more than 20 times. My favorite examples of his writing can be viewed here, here, here, here, here,here, here, here,here, here, here, here, here, here, here, here, here, here, here, and here. And you can see him in action here. […]
[…] P.S. As a big fan of Professor Sowell, I’ve cited his columns more than 20 times. My favorite examples of his writing can be viewed here, here, here, here, here,here, here, here,here, here, here, here, here, here, here, here, here, here, here, and here. And you can see him in action here. […]
[…] it didn’t represent a step in the wrong direction since the Supreme Court basically gave a green light to unlimited federal power back in the 1930s and 1940s. The Obamacare case is best characterized as a failure to do the right thing. A very tragic […]
[…] P.S. As a big fan of Professor Sowell, I’ve cited his columns more than 20 times. My favorite examples of his writing can be viewed here, here, here, here, here,here, here, here,here, here, here, here, here, here, here, here, here, here, here, and here. And you can see him in action here. […]
[…] cited his columns more than 20 times. My favorite examples of his writing can be viewed here, here, here, here, here, here, here, here, […]
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[…] Thomas Sowell, George Will, and Walter Williams have all explained that the Constitution imposes strict limits on the powers of the federal government. This means, for all intents and purposes, that it is a somewhat anti-democratic document. […]
[…] P.P.S. Yes, this implies limits on democracy. Our Founding Fathers, contrary to E.J. Dionne’s superficial analysis, were opposed to untrammeled majoritarianism and wanted to make sure 51 percent of the people couldn’t vote to rape and pillage 49 percent of the people. […]
[…] Obamacare are inconsistent with the Constitution, here’s some good analysis by Walter Williams, Thomas Sowell, Philip Klein and Damon Root, and yours […]
[…] it didn’t represent a step in the wrong direction since the Supreme Court basically gave a green light to unlimited federal power back in the 1930s and 1940s. The Obamacare case is best characterized as a failure to do the right thing. A very tragic […]
[…] Thomas Sowell, George Will, and Walter Williams have all explained that the Constitution imposes strict limits on the powers of the federal government. This means, for all intents and purposes, that it is a somewhat anti-democratic document. […]
[…] it didn’t represent a step in the wrong direction since the Supreme Court basically gave a green light to unlimited federal power back in the 1930s and 1940s. The Obamacare case is best characterized as a failure to do the right thing. A very tragic […]
[…] know if this is because he recognizes the danger of untrammeled majoritarianism, much like Thomas Sowell, George Will, and Walter Williams. But if you want more information on why 51 percent of the people […]
[…] superficial analysis, were opposed to untrammeled majoritarianism and wanted to make sure 51 percent of the people couldn’t vote to rape and pillage 49 percent of the people. Like this:LikeBe the first to like this. By Everette Hatcher III, on September 24, 2012 at 6:44 […]
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[…] Thomas Sowell, George Will, and Walter Williams have all explained that the Constitution imposes strict limits on the powers of the federal government. This means, for all intents and purposes, that it is a somewhat anti-democratic document. […]
[…] Thomas Sowell, George Will, and Walter Williams have all explained that the Constitution imposes strict limits on the powers of the federal government. This means, for all intents and purposes, that it is a somewhat anti-democratic document. […]
[…] superficial analysis, were opposed to untrammeled majoritarianism and wanted to make sure 51 percent of the people couldn’t vote to rape and pillage 49 percent of the people. Share and […]
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[…] the Supreme Court decided about 70 years ago to no longer uphold that part of the Constitution (sounds familiar, […]
[…] that horse got out of the barn many decades ago, culminating in a horrible 1942 Supreme Court decision that said a man couldn’t grow crops on his own land to feed his own animals for consumption […]
[…] of Professor Sowell can read more of his work here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here. And […]
The problem is that, given a clear opportunity, in the Raich case dealing with California’s attempt to legalize private possession and use of purely intrastate marijuana, to rein in the revolutionary holding in Wickard v. Filburn, it was the so-called, alleged, and purported “conservatives” who, in order to preserve and protect the sham and scam then called the “war on drugs,” Obama’s latest name for which racket I forget at the moment, reaffirmed the farthest stretch of the Interstate Commerce Clause etc. Paradoxically, they have not treated the Americans with Disabilities Act and the ADA Amendments Act as favorably.
You could, with the full knowledge of the state and federal authorities, buy anything , including marijuana with or hopefully without embalming fluid or rat poison, cocaine, a child either for sex or black-market adoption, arson and other crimes, and most public officials, within or within brick-trowing or hollering distance of the courthouse, the juvenile detention and probation facilities, the police and sheriff’s offices, the jail, etc. and within sight and haling distance of my law office. I reported all these offers, and worse crimes, the fire marshal told and showed me. another official, etc. that the destruction of my law office across from city hall had clearly been arson, and told me who had hired the “torch,” but wouldn’t put that in his report, and the authorities told me they knew about such things but refused to act. The police listed the block occupied by the police station as a “high crime and known drug-dealing area” in arrest reports. My neighbors and I, and uniformed officers in a marked car with its red and blue lights flashing, who told us they already knew, watched drug dealing on this block within brick-throwing distance of a state university and thus in an enhanced-penalty area, and I went all the way to the state and federal DEA and the White House Drug Czar, under Presidents of two different parties, and it took nearly two years before we finally got Building Inspection to get that infamous crack house shut down. Nobody would act to protect or bust known perpetrators of sexual offenses against kids from three to thirteen without known political pull, much less those from the families of and incestuously molested as children by politicians palmed off on us by both parties.
A new Constitutional convention? I hope you’re kidding? Do you really trust 56 of those who would run it to act honestly, or as well as the outstanding group of Framers who gave us the basics of the Constitution we have now? Do we want
to risk ending up with some new and allegedly improved version patterned after Elena Kagan’s preferences, or the constitutions of the former Soviet Union, Iran, or Paraguay? We might get back toward the original understanding of what is and is not interstate commerce, and we might get some redefinition that would let us keep Social Security without a complete conversion from a federal government of defined and limited functions and powers to an absolute and unlimited federal government, or we might end up with no real limits at all. We might re-establish the original understanding both of Federalists like Madison and Anti-Federalists like Jefferson and Patrick Henry concerning the intent and construction of the Constitution,k or we might end up with the so-called “living Constitution” theory in which the very unrepresentative Justices functioned as some kind of “continuing Constitutional convention” without the check of ratification. There were some laws about which I agreed with the late Senator Ted Kennedy, not to mention Senator Obama, but Kennedy’s view, largely accepted by Democrats, that the taxing and spending powers were not only independent of the defined and limited functions and powers of the federal government but altogether absolute. limitless, and beyond judicial review.
And the soution to all of these vagaries is a Constitutional Convention where ‘we the people can make the wording correct and the Constitution agree in fact with it’s sister document The Declaration of Independence.
It is time for this to happen…..
@Kumozarusan
Nice analysis, I’ve always held that the “commerce clause” was restricted to ensuring that trade agreements between sovereigns, since all three mentioned in the clause are sovereign. It was intended to let congress intervene to ensure that one state couldn’t place a different tariff on goods from state A than it did with state B. It absolutely doesn’t apply to an individual’s right to make economic decisions for themselves without government regulation. Your argument is similar to one I make on the “general welfare” clause claimed by progressives. By definition any program that takes from one citizen and gives to another citizen or class of citizens cannot be considered a contribution to the “General” welfare, due to the disparate impact. These programs in fact contribute to the Specific Welfare of some individuals, a clear violation of Constitutional intent.
Thomas Sowell for President.
[…] https://danieljmitchell.wordpress.com/2012/03/30/thomas-sowell-explains-the-1942-case-that-enabled-go… […]
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Wickard v. Filburn (1942) makes me want to cry out to change history. If only that decision had gone a different way, we would have had dramatically more economic freedom in this country.
For a year or two, until some case in ’43, ’44, ’53, or ’60 using reasoning just as tortured and showing a similar disregard for the plain meanings of words and judicial contradictions.
The politically powerful wanted/want to control our society and they got away with a lot of it. World War II was a crisis which could not go to waste. It also brought us the control of medical care, by making it more economic for employers to control it rather than individuals.
The principle of “stare decisis” (to stand by that which is decided) is perfectly reasonable. The SC will never overturn Wickard. The theory is that the people can politically reverse any bad decision, if they wish, by amending the Consititution or by making such a political stink that the SC would follow.
But, the sheople say “baa-aaa” and accept these changes as permanent, if unfortunate, because they follow the dictates of their “betters” without a second thought. Or, a first thought.
The most eloquent expression of this situation comes from the 1960 movie The Magnificent Seven.
The bandit leader Calvera talks to Chris, the leader of the seven gunmen who have agreed to defend the farmers. Chris asks how Calvera can justify robbing the farmers.
Calvera: “If God didn’t want them sheared, he would not have made them sheep.”
Great writing from two of the best : Dan Mitchell and Thomas Sowell.
Brilliant analysis! Thanks Thomas, and thanks Dan!
Linguistically, if you look at the wording of the Interstate Commerce Clause, particularly the word “among” in the clause “to regulate commerce…among the several states,” there is no implication whatsoever of an ability to regulate “intrastate commerce,” even that intrastate commerce intimately related to interstate commerce. This is because there is no synonymous relation between the words “within” (“intra-” and “among”/”between” (“inter-“); they are antonyms, and that is the only relation between the two words. “Among,” in all it’s definitions, denotes two or more entities and the relationship those entities have with each other, and in no way does the word “within” attach to “among,” at least not in the way “among” is used in the Commerce Clause. Thus, the ruling in Wikard v. Filburn is a stretch indeed, a huge stretch and redefining of the word “among,” which only the most desperate statist and power hungry government official could create. Remember,
Every dictionary shows this in its definition of “among” used as a preposition.
In addition, look up “among” in ANY thesaurus, and you will always find the word “between” as its synonym, and never once will you find the word “within” as a synonym, nor “intra-“.
Also, there is the well known grammar rule of the English language that you use “between” when speaking of only two things, usually people, while “among” is used when speaking of three or more undefined or collective things, like states. The Framers of the Constitution knew their grammar. They knew that using “among” instead of between was appropriate because there were multiple states, a mass of states, not only two particular states. Thus, they used “among” instead of “between.” And synonyms of “among” and “between” are obviously “inter-,” while the opposite of “among,” “between,” and “inter-” is “intra-,” meaning “within.”
It has been established already by the Supreme Court (henceforth called the “SC”) that the Commerce Clause refers to “interstate” commerce, given the word “among,” and it was only with Wickard v. Filburn that “intrastate” commerce somehow began to be included or somehow related to “interstate” commerce. But if the Commerce Clause refers exclusively to “interstate” commerce given the word “among,” how can it reasonably be inferred that “inter-” and “intra-,” antonyms in a normal world, are one in the same, synonyms, or that “intra-” is included in the meaning of “inter-“? How can “among”/”between” and “within” be connected or somehow mean the same thing, logically? Linguistically, the two words cannot be connected, except that they are antonyms, so how can they be connected legally, to say that “among”/”between” somehow includes or infers “within”? This is a case of the SC arbitrarily changing the English language to something that, outside of SC land, in the real world, doesn’t exist, where in the real English speaking world, “among”/”between” and “within” (“inter-” and “intra” have no connection to each other, but are complete opposites! It makes no sense, whatsoever!
Plus, history has demonstrated that the country framed and ratified the Constitution with the understanding that the word “among” as used in the Commerce Clause, meant “interstate commerce” and not “intrastate commerce,” “intrastate commerce” being reserved to the states, respectively, via the 10th Amendment, as noted by Mr. Mitchell and Mr. Sowell.
Also, it must be noted that the SC justices who decided Wikard v. Filburn were mostly FDR appointees, FDR having stacked the bench because the Court under different justices had originally struck down his New Deal plan(s). Thus, in order to bring about his New Deal plans, he stacked the SC bench with justices favorable to FDR’s New Deal, ad Wickard v. Filburn and the Agricultural Adjustment Act was just one pea in the pod of New Dealism.
Thus, I agree, Wickard v. Filburn ranks up there with Plessy v. Ferguson, Dredd Scott v. Sanford, and Heart of Atlanta Motel Inc. v. United States as the worst SC rulings ever in the history of this nation, rulings that have eaten away at the freedom and rights of the individual in a country that supposedly champions the freedom and rights of the individual. These are terrible court decisions that have done so much harm to liberty, property and pursuit of happiness.
Wickard v Flilburn was betrayal of the Constitution and betrayal of America.
And EJ Dionne thinks it’s the conservatives on the Roberts’ court that are teh activists. . . .