Pageantry or Policy? Part 2
of Cases and Controversies
In our last installment we plunged in to the Wickard v. Filburn train-wreck, and found a gaping hole in an otherwise respectable Supreme Court record. We proved—unequivocally—that the ruling was completely lame, and it led us to the designation of Apple Pie as un-American. I’ll tell myself that my clever pie analogy was key to unlocking it all, and the reason Senator Lee and Casey Mattox are up in arms. The ruling looks like a prank and we saw the reasons why (through the lens of my profound lack of legal knowledge). By Wickard’s vague terms, anything that “might affect” bread prices in an alternate universe falls under the government’s regulatory chokehold. Big daddy James Madison once warned, “The accumulation of all powers… in the same hands… may justly be pronounced the very definition of tyranny”—but apparently the Court missed that memo; as they were too busy body slamming farmers like Filburn.
Article III and Judicial Scope
After proving that I have an opinion on the Commerce Clause misread, it’s time to go to the source and back it up. Let’s ask the Constitution what it has to say on the matter; the Court’s purview is defined in Article III Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
I have to admit I nodded off at least three times reading this endless run-on sentence. There’s more to read in Article III if you have insomnia; but it’s not relevant here so I’ll spare you the pain. It’s a laundry list of “Cases” and “Controversies” between states, citizens, and the feds. From my highly untrained perspective, Filburn’s private wheat stash doesn’t feel like it belongs on this fancy list—sure, his fight over a fine counts as a “Controversy” with the United States, but ruling against a citizen like him for maybe tanking national markets? That’s like swatting flies with a nuke. Cases and controversies mean real fights, not wild guesses about what folks might stash away, so that’s the focus, for those of us still awake.
The Boundaries of Justice
Hamilton, warning in Federalist No. 78 that the judiciary “has no influence over either the sword or the purse… and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.” Wickard’s judges ignored that, flexing “will” to rewrite the rules instead of judging Filburn’s actual case. “Cases and Controversies” doesn’t mean crystal ball predictions of what might happen if something else happens to happen. Marbury v. Madison (1803) told courts to judge facts, not play economist with psychic readings. Yeah, Filburn was disputing a fine I get it, but the ruling was all based on some psychic forecast: the AAA said Filburn’s wheat was going to market (it wasn’t) and that his followers might tank wheat markets. That sets a precedent which is now a go-to for today’s court; dodging our Constitution’s actual words (no wonder—it’s a drag to read). This isn’t what the Framers had in mind. John Marshall, before he was Chief Justice, argued at Virginia’s 1788 Ratifying Convention that “the judicial power is to decide controversies between parties who come into court… to secure uniformity and impartiality.” Filburn came to court, sure, but the “controversy” was a government fever dream about aggregate market effects, not his backyard wheat.
Pressure and Priorities
There’s another influence we should consider; FDR was basically hurling lit matches at our Constitution, the Court wasn’t having it and pushed back hard—even ruling the 1933 version of his Agricultural Adjustment Act (AAA) unconstitutional. FDR wouldn’t give up the fight and his 1938 AAA tweak passed—this is the one Filburn got burned under. But FDR also had played the system; the Constitution doesn’t say how many judges must be on the court, and he used that as his leverage. Roosevelt warned that he would pack the Supreme Court with friendly judges (for every un-retired justice over age 70, up to six more). This would have overwhelmed his competition—like a WalMart buying up the land around a family shop and building a mega-complex around it. The judges basically waived the white flag, and by the time Filburn came up they seem primed to punt justice for their cushy jobs. So it wasn’t just a ruling based on some random quirk in the text—as hard as it is to read—FDR had pushed the court around and they buckled under the pressure. I presume they understood that the case hinged on Filburn’s wheat being sent to market, yet they ruled against him anyway not based on the facts of the case, but rather on some premonition of aggregate affects; or maybe it was just to appease FDR.
The Rot Runs Deep
Wickard’s not just Filburn’s loss—it’s a wrecking ball to the Constitution’s guardrails. The Court’s wild guess that his private wheat stash might tank markets broke Article III’s rule: stick to real fights, not “what-ifs.” Hamilton and Marshall would’ve scoffed at this judicial power grab, and FDR’s court-packing threats didn’t help, egging justices to rubber-stamp his New Deal overreach. Today, Wickard’s precedent lets the feds snoop into anything—your crops, your personal projects—if they claim it might affect markets. That’s not justice; it’s a betrayal of the deal “We the People” signed up for. Next up, we’ll dig into the 10th Amendment to see if it can fence off this federal overreach, keeping power where we agreed it belongs—with the states…or maybe the people.
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