Ever given any thought to the worst Supreme Court in recent history?  I’m not talking about miscarriages of justice like the Dred Scott decision; I’m talking about the post-Depression era, when many of the Imperial institutions in place today were brought into play.

When posed this question, many will mention Roe v. Wade, or some other decision on social issues.  I’m not talking about those, at least not today.  And I’m not denying there have been some good decisions in recent years, particularly on Second Amendment issues.

But one decision paved the way for a massive expansion of Imperial power on commerce; it was a bad decision, it was unjust, and it should be overturned.  That 1942 decision was Wickard v. Filburn, which opened up the definition of “interstate commerce” to include anything Congress thinks it should mean.  Here’s a summary of that decision:

An Ohio farmer, Roscoe Filburn, was growing wheat for use to feed animals on his own farm. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to stabilize wheat prices and supplies. In 1941 Filburn grew more than the limits permitted and he was ordered to pay a penalty of $117.11. He claimed his wheat was not sold in interstate commerce and so the penalty could not apply to him. The Supreme Court stated “The intended disposition of the crop here involved has not been expressly stated” and later “Whether the subject of the regulation in question was ‘production’, ‘consumption’, or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us … [b]ut even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’.”^[4]

The Supreme Court interpreted the United States Constitution‘s Commerce Clause under Article 1 Section 8, which permits the United States Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Court decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the purview of the Commerce Clause. Although Filburn’s relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself, the cumulative actions of thousands of other farmers just like Filburn would certainly become substantial. Therefore, according to the court, Filburn’s production could be regulated by the federal government.

The decision turned on the idea that a crop, like wheat, is a fungible commodity, and that a farmer growing wheat on his own land for his own use has some effect on the overall price of the commodity.  The decision involved the Constitutionality of the Agricultural Adjustment Act of 1938, a statute that is in and of itself in direct conflict with fundamental liberties and free markets.

Look, though, at the original issue here.  The Imperial government, then under President Franklin Roosevelt, held that the Congress has the ability to regulate the growing of a crop on private land for personal use.  The result of this is that the Commerce Clause of the Constitution exploded to cover any damn thing that Congress can possibly shoehorn into that definition.

That’s insane.  The argument is that the fungibility of a crop and the Imperial government’s unfair and unreasonable controls of the prices of agricultural commodities overrules the rights of a private citizen to grow crops on private land for personal use.

I’ve stated repeatedly in these virtual pages that there are two principles that are paramount in a free society:  Liberty and Property.   Wickard v. Filburn violates both of those principles.  This decision, along with the the Agricultural Adjustment Act and it’s successors, should be overturned.  I’d like to see the incoming Trump Administration, which has paid lip service to free markets, to move in this direction; to overturn one of the most liberty-restrictive laws and supporting Supreme Court decisions in recent history.