Pageantry or Policy? Part 1
of Apple Pies and Agriculture
I follow Senator Mike Lee on X, he has a great sense of humor and a libertarian style I appreciate. He recently replied to a post by Casey Mattox, a constitutional lawyer with a sharp wit of his own. Mattox seems to hold a bitter animosity toward the 1942 Wickard v. Filburn ruling, so much so that he blames it for every ill under the sun. Lee joins the protest, doubling down against Wickard, “[it’s] the root of all evil in the U.S. Government” he snipes.
I have no background in law—clueless to what they were going on about, but their complaints piqued my curiosity. Digging in, this Wickard case hurled me down a rabbit hole I didn’t anticipate. The ruling is so egregious I couldn’t make it make sense, and the further I dug the more it shocked me how far we’ve strayed from our founding principles.
Imagine this: A grandmother is fined and sued by the federal government, and her case climbs the ranks to the Supreme Court. Grandma’s offense? She baked an apple pie for her family.
Grandma made this offending pie using flour, butter, sugar and of course apples. She bought most of the ingredients from the local grocer, who imports them from across state lines. But Grandma’s apples? they were picked from her own backyard tree. The 1905 Swift & Co. v. United States precedent says the bought ingredients are part of a “stream of commerce,” and therefore are subject to regulatory oversight. Grandma’s apples however—grown for personal use—fall under a subsequent ruling, which brings us to the abhorrent Wickard v. Filburn case. This 1942 precedent holds that whatever “affects” commerce can be regulated under the Commerce Clause. The feds contend that by growing her own apples, Grandma’s reducing the demand for commercial ones (from producers who enjoy federal subsidies, while Grandma gets a fine). But let’s not forget her baking, a potential threat to the pie trade as well. In our hypothetical case—Grandma v. United States—the federal government insists that if enough grandmothers start baking pies, it has the potential to “affect” markets nationwide. Homemade apple pies fall under the Commerce Clause and therefore they can—they must—be regulated. The Court rules against Grandma under the Wickard precedent and she begrudgingly pays the fine. Now every pie-baking citizen with a backyard tree faces the threat of federal retaliation; homemade Apple pies are decidedly anti-American after all.
Sound like an exaggeration? It’s really not.
Wickard v. Filburn is no less obnoxious: An Ohio farmer, Roscoe Filburn, grew a stash of wheat for his livestock, his daily bread, and next year’s seed—not a kernel left his farm. Filburn wasn’t selling across state lines or to a local market, yet the Agricultural Adjustment Act (AAA)—part of FDR’s “New Deal”—set paternalistic quotas meant to “stabilize” the markets, and Mr. Filburn grew more than this arbitrary quota allowed. He was slapped with a fine for growing wheat which was presumed to be headed to market. Filburn pleaded his case before the Supreme Court and lost, and this festering precedent stands to this day. But his wheat wasn’t really the issue; the Court ruled that if others followed Filburn’s lead, they could produce an aggregate “affect” on interstate commerce, and undercut the wheat market nationwide.
You don’t need to read the Commerce Clause to smell it: Wickard stinks of a perversion of justice. While our hypothetical Grandma might be safe—for now—Filburn’s case leaves us all at risk of a smackdown. So let’s go to the source, and figure out what the clause is—and isn’t—meant to do:
The Congress shall have the power…To regulate commerce with foreign nations, and among the several states, and with the Indian tribes [1]
Often when I read things like this Commerce Clause, something immediately jumps out at me: that ellipses “…” means words are being glossed over, so what’s missing? “The Congress shall have the power” doesn’t come from the Commerce Clause (clause 3), it comes from clause 1. What else do we find hidden there behind this dubious ellipses?
but all Duties, Imposts and Excises [regulatory tools for trade or commerce] shall be uniform throughout the United States [2]
If this portion’s omitted, Congress could impose unbalanced trade rules on the states. One state could be prohibited from trading entirely, while another could be given preferential treatment. Tools like duties, imposts and excises (for the regulation of commerce) must be “uniform throughout the United States.” Who would argue that trade barriers or regulations shouldn’t be uniform throughout the United States? What’s more, the “uniform throughout” clearly contrasts with “regulate among”, and provides a resolution to the question of scope. “Among” is clearly used here to mean between—inter-state as opposed to intra-state; Wickard is clearly overstepping the boundaries of this Commerce Clause across state lines right into Filburn’s backyard.
Now we turn our attention to “regulate”—in context it implies to make regular or standardize (uniform), not to prohibit. Before drafting our U.S. Constitution, the states were sovereign and unified by a treaty of sorts. The issue this Commerce Clause was crafted to address, is that under this treaty—The Articles of Confederation—states could impose tariffs against each other; and they did. The clause aimed to provide standard or uniform rules of trade between the states—the Commerce Clause was the remedy to these inter-state squabbles. In 18th-century dictionaries like Samuel Johnson’s (1755) the word “regulate” is defined as “to adjust by rule” or “to make regular.” This clause was written to establish a regular or standardized trade process, not to restrict private wheat use—or symbolic apple pies for that matter. Wickard’s ruling ignores the context of this clause, and perverts “regulate among” to read “restrict within.” By doing so they established a dangerous precedent which threatens all of us to this day. It’s not hard to understand what the Commerce Clause says, but it’s hard to see how it could be construed to cover Filburn’s wheat, he’s not selling it or taking it to market (commerce) he’s simply growing it for personal use.
The AAA’s not innocent either: it presumes all crops are ‘regarded as available’ [3] to the market—even Filburn’s personal stash. Its assertion of what is ‘normal supply’ [4] (the fixed amount of wheat kernels the nation produces) assumes an unwavering production—blind to drought or rain—ensuring Filburn gets buried under an avalanche of ‘what-ifs’. This assumption creates a mechanism by which the government can impose upon any person with the audacity to eat from their garden. The high Court—strong-armed by FDR—didn’t actually rule regarding Filburn, it ruled against the hypothetical “affect” on the market if others followed his self-sufficient example.
As we dig deeper into the implications of this story, we’ll discover how this ruling echoes a much deeper rot in our system—spanning from the Constitution’s preamble “We the people”, down to it’s bookended sibling in the 10th Amendment. The upcoming articles will be a fun dive into constitutional law—whether you understand it or not (I sure don’t)—so let’s buckle up and enjoy the ride!
Next up:
- Part 2: “Pageantry or Policy?—of Cases and Controversies” How Wickard’s “could affect” defies the judiciary’s limits.
- Part 3: “Pageantry or Policy?—of Power and the People” How the 10th Amendment’s final clause, misread as pretense, cracks the Constitution’s core.
- Part 4: “Pageantry or Policy?—of Mandates and Misunderstandings” How the Guarantee Clause could be an actionable and justiciable mandate.
- Beyond: How the Declaration’s principles, lost to modern reads of pageantry, tie these bookends together.
Sources:
[1] Article 1 § 8, Clause 3 of the U.S. Constitution
[2] Article 1 § 8, Clause 1 of the U.S. Constitution
[3] 7 U.S.C. § 1340 – AAA of 1938, Sec. 340
[4] Agriculture Adjustment Act § 8(1)
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