Talk:Wickard v. Filburn

Unconstitutional
The word "unconstitutional" appears only once in this entire article. It is in the opening blurb, and only in reference to the "business interests" (well-poisoning term) which lobbied against the ruling. There is no criticism section. There are no counter-views. This page is pure, unadulterated statist propaganda at its absolute horrific best. — Preceding unsigned comment added by 98.191.15.34 (talk) 16:22, 10 April 2018 (UTC)

"remains the law of the land"
Should we reword this? The court doesn't (or at least shouldn't) make law; maybe a better wording would be "remains an active precedent". I'm not a lawyer, however, and don't know if this phrase has a special &mdash; if deceptive &mdash; meaning to specialists. 2600:1008:B129:A8D6:D018:B6A5:3796:B951 (talk) 14:50, 28 January 2017 (UTC)

down with Wickard
During the short time that I have been in law school, no case has upset me more than Wickard. Backyard gardeners should beware, your cultivation of onions may be regulated by Congress.
 * Yes, but Wickard was a "high water mark" from which the Court has been receding ever since. And really, it was a symptom of the Great Depression, when a lot of backwards law was made. BD2412  talk 02:44, 28 October 2005 (UTC)
 * Obviously I am not the person to be editing this article... I just want to express my rage regarding this case. WHAT A LOT OF BULLSHIT! The judge should have been impeached for fraud and treason against his oath of service and the constitution. >:| Lord Metroid 09:51, 5 February 2007 (UTC)
 * wow - yeah - Try reading more cases; find a judge that shouldn't... Nicholas SL Smith 02:18, 17 September 2007 (UTC)
 * I actually think the power of the federal government to regulate apparently intrastate activity as seen in this case has actually been strengthened in recent years. The Raich case mentioned in the article allowing Congress to regulate home-grown marijuana, as well as United States v. Stewart (2003) which relied on Raich, regulating home-made machine guns tells me that the court is very willing to follow Wickard's precedent. Also, the public's limited response to those cases tells me that Wickard is being more and more accepted.--Cdogsimmons (talk) 02:01, 6 May 2008 (UTC)
 * I wish I knew who the original poster of this section was. I agree completely.  I did very poorly in Con Law last year (my 1L year) because IMHO it is little more than a history of blatantly politically-motivated rulings made by the Court.  It's not just onions from the garden;  this case has laid the foundation for seventy years of abuse of power.  I suppose my posting this means I'll never have to worry about being appointed to SCOTUS.  Oh well, I'd rather be an elected dictator anyway.--MJustice (talk • contribs) 10:51, 22 October 2009 (UTC)
 * What would be necessary to reverse Wickard? Would a Constitutional Amendment be required? Has any attempt ever been made to overturn it? I think such information would be a useful addition to the article. -- SpareSimian (talk) 22:42, 19 October 2010 (UTC)
 * +1 to SpareSimian's comment -- Also, why is there no "criticism" section? Surely those of you who are upset by the case can find some legitimate criticism and represent that part of this case.
 * To answer SpareSimian, a Constitutional Amendment is always effective to overturn a Supreme Court ruling. Keep in mind the enormous political strength that would be required to be successful in passing an amendment.  I'm not sure what you mean by an attempt to "overturn" this case.  There were probably some demagogues who made a show (there always are).  A constitutional amendment limiting the federal government's power over commerce would not be necessary or useful.  The national government's power to regulate the national economy has made us the economic powerhouse we are today.  The states left to their own would be unable to effectively regulate interstate entities or address negative externalities beyond state borders.  Besides an amendment would be pointless now... see the Lopez and Morrison cases -- two very notable SCOTUS cases recently released which limit the previously expansive reading of section 8 clause 3.  —Preceding unsigned comment added by 174.75.114.85 (talk) 00:36, 7 March 2011 (UTC)
 * "The national government's power to regulate the national economy has made us the economic powerhouse we are today." Economists would debate that statement. — Preceding unsigned comment added by 24.53.71.73 (talk) 22:13, 18 November 2011 (UTC)

There is a lot of misconception about this case. First, it's not a case about individual rights vis a vis the government (state or federal); rather this is a federalism case regarding the balance of power between the federal government and the state. Many might feel that *no* government should tell them what they can or can't do on their own land -- that is not the issue at all. The question is assuming governments have this power, which government can exercise it -- the state or Congress? Applying Article 1 sec 8 Commerce Clause to the issue the Supreme Court held the Federal government may.

Secondly, a little background on the case should probably dispel many concerns about the non-relevant individual rights issue. The farmer here was accepting subsidies from the government in exchange for which he was under the imposition of obeying government quotas. If he didn't want the subsidies he didn't have to obey the quotas. —Preceding unsigned comment added by 68.11.174.11 (talk) 23:14, 26 February 2011 (UTC)
 * "If he didn't want the subsidies he didn't have to obey the quotas." Gonna need sources for that.

Comment 2015 - If many feel that the government should not be telling them what to do on their land -- it is because they have a mistaken notion about land ownership. In feudal England, all land belonged to the King. He then parceled it out to nobles and lords -- who then parceled it out to their feudal serfs/workers -- via land grants. Ultimate ownership remained with the ultimate authority (king). You don't buy land with a mortgage, you buy a land grant with a mortgage. When US law is silent on a topic, then English common law still applies. Thus, even in the US -- land belongs to the ultimate authority (king or government) and is parceled out via land grant (which is why it can be burdened with taxes and subject to forfeiture). Thus it should be clear that the ultimate owner of the land (king/government/land grant authority) can set whatever limits it wants on use of that land under its land grants. Chesspride 66.19.84.2 (talk) 07:34, 19 April 2015 (UTC)

Other Thoughts
There is an interesting parallel in First Amendment Law with Paris Adult Theater I v. Slaton, holding that obscenity which is shown in a private theater may still be regulated in order to "stem the tide of commercialized obscenity." Of course, it was a place of public accommodation, not a privately owned farm, but the reasoning struck me as parallel nonetheless.

I also prefer Cornell Law School's Legal Information Institute for actual opinions, as findlaw is not very good (IMHO): http://www.law.cornell.edu/supct-cgi/get-us-cite/317/111

Dana Powers 00:28, 11 May 2006 (UTC)

Nice suggestion, Dana. I added your LII link to the main article beneath the existing Findlaw link.

--Chenx064 01:33, 28 June 2006 (UTC)

Laissez-faire
I feel betrayed. Aren't we supposed to be a country built on free enterprise? How does fixing the price of a good by the national government constitute that at all? 12.147.134.164 22:06, 12 August 2007 (UTC)
 * Our Constitution embraces no particular system - in fact, it specifically tasks Congress to regulate bankruptcies and copyrights, two features that do not exist at all in laissez-faire systems, and to regulate interstate and international commerce (broad powers no matter how you slice 'em). bd2412  T 23:50, 12 August 2007 (UTC)

They weren't the broad powers you've been led to believe. Do you really think the founding fathers thought that the Commerce Clause could legally be used to ban people from growing their own food? With this ruling that is Constitutional. All it takes is a federal law and your backyard vegetable garden could be gone. Somehow I doubt that was ever the intention of the Commerce Clause. Apparently all it takes is 150 years for judges in government to completely forget the origin of said government. User:72.209.12.250 05 May 2008 (UTC)


 * Much of the reasoning of expansive readings of the commerce clause hinge on the concept that not every check to the federal government need be a textual constitutional check enforced by an unelected, removed federal judiciary. The Supreme Court is very mindful that the federal system operates within a political sphere that has its own political checks and balances that they need not bother with.  Ultimately, who is best left to decide the commercial needs of a democratic nation? -- the elected officials directly responsible to the people or a panel of nine unelected judges.  The justices have opined that if the people find the Congress' use of the commerce clause tyrannous they are perfectly capable of voting Congress out -- but the same can not be said of the Justices.  —Preceding unsigned comment added by 174.75.114.85 (talk) 00:40, 7 March 2011 (UTC)

Q: "Who is best left to decide the commercial needs of a democratic nation"? A: The people, through voluntary trade. — Preceding unsigned comment added by 24.53.71.73 (talk) 22:11, 18 November 2011 (UTC)

Context
I've tried to add some context to this discussion by inserting the economic background. I believe that the central idea of Wickard is widely misunderstood. If you remove Wickard from its context, then it is really difficult to understand its rationale or what it is really holding. In addition, the central question in Wickard is not whether it is a good idea to use the commerce clause power in the way that Congress chose to use it. The central question is when should the wisdom of exercising the power be determined by life-tenure unelected judges, and when should that be decided by elected representatives who can be removed from office by the people in two years time. In Wickard, Justice Jackson is hearkening back to the ideas of the early federalist court, in which Justice Marshall said, look, the people who make the decision about how to use the Commerce clause should be people who are directly and immediately accountable to the people. So the case is saying, if you think Congress is going too far, vote the bums out of office. Jvonkorff (talk) 22:44, 22 August 2008 (UTC)

I've added some context on FDR, the New Deal, and how his court packing attempt in 1937 intimidated future court rulings. Specifically, the court began to have fewer and fewer constitutional issues with FDR's programs after they thought the court's influence could be watered down.CReynolds (talk) —Preceding undated comment was added at 21:32, 4 November 2008 (UTC).

The opening sentence of this wikipedia entry, "Wickard v. Filburn must be read against the background of the Great Depression and the beginning of the Second World War," is dangerously misleading. Laws ought never be read against anything but their text. The danger of reading laws against such things as "the background of the Great Depression and the beginning of the Second World War" is that we subsequently end up with abominable rulings such as what Justice Jackson wrote in Wickard v. Filburn. The holding in Wickard v. Filburn is inexcusable, unconstitutional, and unforgivable, even when read against the background of the Great Depression and the beginning of the Second World War.

The Commerce Clause ("Congress shall have power . . . To regulate commerce . . . among the several states,") neither includes nor implies so much as a single word about economics. If the Framers and Ratifiers wished to grant Congress the power to regulate economic activity--ACTIVITY THAT DOESN'T INCLUDE A SINGLE COMMERCIAL TRANSACTION, then they could have included such power in the Constitution. They did not do so. The Supreme Court usurped the right of individuals to conduct activity in private (and face it, all activity is economic activity), and subjected that right to FEDERAL control.LibertyDefender (talk) 04:01, 6 May 2009 (UTC)


 * Beginning with Maryland v. McCulloch Chief Justice Marshall wrote that the power of Congress over interstate commerce is plenary. If Congress oversteps its "bounds" recourse lies in voting the Congress out by the people not relying on an unelected bench of nine Justices.  Who is in the best position to gather information about commerce, to hear the specific wishes of the people of the United States, or to debate and vote on whether a law should be passed: Congress or the Supreme Court?  The Supreme Court has repeatedly stated that political checks on the power of commerce are a sufficient recourse.  Besides the holding in Wickard is almost a century old and has since been tapered back.


 * With regards to your statement "Laws ought never be read against anything but their text" I will remind you we are a common law nation not France. —Preceding unsigned comment added by 174.75.114.85 (talk) 01:18, 7 March 2011 (UTC)

Subsequent jurisprudence
can someone make this section a bit more clear... please ;)

Editorializing in the intro
From the intro:

"Filburn was growing more than the government's scheme permitted. Filburn was ordered to destroy his crops and pay a fine to the government for being too productive ."

I am editing the underlined bits out. They make obvious implications that—whether true or not—don't belong in this or any other article. If other contributors want to include opinions on the merits of the Wichard decision, they should include properly cited quotations from relevant authorities, not inject those opinions into the text of the article.

Oconnor663 (talk) 09:50, 13 December 2009 (UTC)

Ideological Polemics in Further Reading?
Can someone direct me to any links about Wikipedia's standards for the "Further Reading" section? There are two works in this section which, from the titles, are clearly ideological polemics.

I'm fairly new to this, so I don't know if that's appropriate to Wikipedia or not. If it is, so be it. All I would recommend in that case is that opposing viewpoints be presented to balance the viewpoints being expressed in the Further Reading section. It would be a shame if people got the impression that Wikipedia officially favored one ideological view of Wickard v. Filburn over another.Baz744 (talk) 00:19, 16 January 2010 (UTC) —Preceding unsigned comment added by Baz744 (talk • contribs) 00:06, 16 January 2010 (UTC)
 * A Further Reading list of scholarly studies by people who do not care which way the case went will be empty. The current reading list is balanced about even between pro and con. Rjensen (talk) 02:00, 16 January 2010 (UTC)

I see a couple of scholarly articles, a Con Law textbook, and two plain ideological anti-Wickard polemics.

By "pro" Wickard, do you mean the scholarly articles and the Con Law textbook?Baz744 (talk) 10:30, 16 January 2010 (UTC)
 * The two articles by Chen are pro-decision; the Epstein and Levy publications are anti. I have not looked at the Kommers casebook. Rjensen (talk) 16:26, 16 January 2010 (UTC)


 * I did read "Filburn's Legacy." It is %98 neutral. Only in the closing paragraphs does Chen express a modestly pro-decision view.

By contrast, the Epstein and Levy publications are plainly ideological just from reading their titles. Moreover, while they no doubt discuss Filburn, they are general libertarian tracts, and not specifically oriented to discussing Filburn.

A better approach, both editorially and pedagogically, would be to direct readers to Further Readings of the same type. Rather than suggesting scholarly articles for the pro-Filburn view, and libertarian screeds for the anti-Filburn view, maybe some anti-Filburn scholarly articles should be presented to contrast with the Chen articles.Baz744 (talk) 23:55, 16 January 2010 (UTC)
 * good idea. go ahead and add them. Rjensen (talk) 00:13, 17 January 2010 (UTC)

I trust you agree with the proposition that the libertarian screeds should be removed too. Good. I'll get to work.Baz744 (talk) 13:13, 17 January 2010 (UTC)
 * please keep the libertarian "screeds". The case today is highly politicized and they reflect the current views of major think tanks, and Wikipedia is written for the general public, not just for lawyers. Rjensen (talk) 16:48, 17 January 2010 (UTC)

"Switch in time that saved nine"
The "switch in time that saved nine" is the cliche that refers to the case; there needs to be (cited) discussion of this position. As such, it is inappropriate to remove the discussion of the earlier court rejections of New Deal legislation and the court-packing scheme as context to Wickard, though it does need to be cited to avoid improper synthesis. THF (talk) 00:38, 9 February 2010 (UTC)

The following text was removed; it needs to be replaced, once cites are provided establishing Wickard's context within the New Deal.


 * In an effort to combat the problems of the Great Depression, Franklin D. Roosevelt proposed, and with the help of the Democratic-controlled Congress passed, many New Deal programs. Within 100 days of taking office in 1933, he and his advisors proposed a series of measures designed to provide relief for the unemployed, recovery of the economy, and reform of the economic and banking systems. However, by 1934, the Supreme Court began ruling against many of the New Deal programs as unconstitutional. In his second term, Roosevelt, flush from his 1936 landside presidential victory, was outraged and was convinced he had a mandate from the people to continue and expand his New Deal programs. This conflict between the Court and the Executive branches of government led to FDR's court-packing bill, which was rejected in 1937.


 * Congress had passed the Agricultural Adjustment Act of 1933, and portions of its provisions were ruled unconstitutional by the Court in 1933, leading to passage of curative amendments by Congress in the Soil Conservation and Domestic Allotment Act in 1936.

NB that every constitutional scholar I've read on the case, from Bruce Ackerman and Larry Tribe on the left to Richard Epstein and Michael Greve and Randy Barnett on the right, thinks that New Deal politics and earlier Supreme Court decisions are relevant to the Court's decision in Wickard. Someone making a good-faith effort to cite this passage will have no trouble doing so. THF (talk) 01:22, 9 February 2010 (UTC)
 * we have numerous articles on American agriculture, the great depression, the New Deal,  FDR, the court packing episode, of  the Conservative Coalition, the 1940 election, World War II etc etc. But don't squeeze that all in here. This is about a court case and should limit itself to those matters. Rjensen (talk) 01:35, 9 February 2010 (UTC)


 * It is quite possible to summarize the matter neutrally with a few kilobytes. I'm not tied to the existing language (the finished sourced product is likely to look much different), but I just want to place a marker on the idea that New Deal context and the switch in time is relevant to the understanding of the case. Wickard reflected a dramatic expansion of federal power, and it did not come out of nowhere. THF (talk) 01:52, 9 February 2010 (UTC)


 * The switch in time happened years before Wickard, which took place during a wartime emergency in which the government was expanding its powers every day. The New Deal was long defunct, and was being rapidly repealed Rjensen (talk) 02:00, 9 February 2010 (UTC)


 * Okay, that's a pretty idiosyncratic view of the New Deal, which we'll sidestep for the moment to focus on the crux. While Wickard was after the beginning of the major 1937 shift in jurisprudence, there's absolutely no question in secondary sources that Wickard is considered one of the major cases that was part of that shift. THF (talk) 02:02, 9 February 2010 (UTC)
 * We agree that Wickard represented a fresh new view of the Constitution that began after 1937. So leave 1933 out of it. Look at White Constitution and the New Deal 200-203 which shows the old interpretation of justices as political actors responding to elections cannot handle the facts.Rjensen (talk) 02:43, 9 February 2010 (UTC)

additional removed text
User:Rjensen removed this uncited text:


 * This was a dramatic reversal of over 150 years of precedent restricting the federal government's power to regulate commerce, which previously had been limited to such areas as transportation across state boundaries on roads and rivers, actual movement of goods between states, and prohibition of punitive taxes imposed by a state on goods from another.

The removed text is factually correct; it does need a cite, however. THF (talk) 00:40, 9 February 2010 (UTC)

Chief Justice Marshall
I'm assuming that the mention of "Chief Justice Marshall" is regarding Chief Justice John Marshall who was involved in Gibbons v. Ogden which had to do with Interstate Commerce, and not Associate Justice Thurgood Marshall who, as far as I can tell, wasn't involved in any significant rulings in the matter? Anakin-Marc &quot;DJ AniZ&quot; Zaeger (talk) 21:38, 23 April 2010 (UTC)

Biased Language
The language near the end of the article "In 1966, a quarter-century after initiating his attack on the agricultural New Deal" is highly biased. No reasonable person would interpret the federal government's attack on the right to farm as being Filburn's "attack on the New Deal." Xj (talk) 04:12, 17 December 2010 (UTC)
 * Agreed. I changed the text to: "In 1966, a quarter-century after this case, ..." —Preceding unsigned comment added by 99.63.47.120 (talk) 02:54, 22 December 2010 (UTC)

Actually, yes, a reasonable person COULD interpret this case as Filburn's "attack on the New Deal." Since, you know, this was a manufactured test case concocted by anti-new-deal activists to challenge the law. But why let a little factual history get in the way of modern adolescent libertarian ideology? I swear, Wikipedia could just fold itself under the Ron Paul campaign by this point...173.161.168.49 (talk) 12:25, 9 May 2012 (UTC)

Name change
The article states "Roscoe Filburn…changed the spelling of his family name to Filburn". What was the name change? The spelling is the same. — Preceding unsigned comment added by 66.195.30.142 (talk) 14:32, 26 May 2011 (UTC)

After finding a source, I changed this to "change the spelling of his family name to Filbrun". 66.195.30.142 (talk) 14:40, 26 May 2011 (UTC) Jim C.

Delete the Whole Thing
...or find and post a link to the TRIAL record. Because the appellate facts on record are less-than-accurate. Filburn was a conservative activist, working in concert with other conservative activists, to push a test case. He was NOT growing excess wheat for personal consumption. That's an apocryphal myth perpetuated by post-WWII pseudo-libertarians to justify their reflexive hatred of all things federal. 173.161.168.49 (talk) 12:18, 9 May 2012 (UTC)

If you have any evidence for this, prove it. 174.54.34.65 (talk) 08:28, 15 May 2012 (UTC)

Update Needed After PPACA
The Supreme Court decision on PPACA means an update is needed to this decision,--Bill Harshaw (talk) 13:06, 11 July 2012 (UTC)

Ordered to destroy?
I thought Filburn was given the options of paying a fine, storing the excess, or delivering the excess to the Secretary. I don't see in the record anything about him being ordered to destroy the crops. Sancho 22:57, 16 July 2013 (UTC)


 * I have removed the mention of being ordered to destroy crops. The only reliable sources that give this information appear to be simply quoting this Wikipedia article, which starts a dangerous cycle of misinformation. Nwlaw63 (talk) 14:57, 20 November 2014 (UTC)


 * For what it's worth, Wickard could have destroyed the excess acreage and be in compliance with the law. The relevant provision reads: " In determining the farm marketing quota and farm marketing excess, any acreage of wheat remaining after the date prescribed by the Secretary for the disposal of excess acres of wheat shall be included as acreage of wheat on the farm, and the production thereof shall be appraised in such manner as the Secretary determines will provide a reasonably accurate estimate of such production. Any acreage of wheat disposed of in accordance with regulations issued by the Secretary prior to such date as may be prescribed by the Secretary shall be excluded in determining the farm marketing quota and farm marketing excess. "  http://www.law.cornell.edu/uscode/text/7/1340 Because he didn't destroy the excess acreage, the AAA office would have notified him of the options as Sancho describes. Bill Harshaw (talk) 20:59, 20 November 2014 (UTC)

Reliable Secondary Source?
If no one objects, I'm going to look for another source regarding Trotwood, Ohio. I'm pretty sure The Filburn Foundation doesn't meet our criteria for a reliable secondary source. Nwlaw63 (talk) 23:03, 28 February 2015 (UTC)

Filburn's activity was non-economic
Filburn's growing of crops for his own animals was itself non-economic activity. It involved no trade whatsoever, but it ostensibly had the potential to effect the interstate market in wheat if many others did what Filburn did. The extraordinary aspect of Wickard was that it gave Congress the power to regulate activity that was not interstate commerce and that was not even economic activity.  Sparkie82 ( t • c )  22:48, 9 October 2015 (UTC)
 * you need a RS that says "growing of crops for his own animals was itself non-economic activity"  it makes no sense to me. --agricultural work  is included in every economics textbook.  Rjensen (talk) 22:56, 9 October 2015 (UTC)
 * If we begin a rhetorical discussion on the meaning of the word "economic" we would be arguing, in a sense, the core issue of the subject case of this article. If I wake up in the morning and scratch my ass, you would say that is an economic activity because it is a service that could be performed for monetary compensation. Agricultural work is differentiated from gardening in that the former is done for trade, while the latter is done for recreation or subsistence. There is a wide spectrum of definitions for economic activity -- I could find a RS to support my meaning, you could find one to support yours.
 * Since the definition of the word "economic" is ambiguous, especially in this context, perhaps another word could be used to more clearly explain the key implication of the opinion, that is, that the scope and application of the Commerce Clause was expanded to activity beyond commerce.  Sparkie82 ( t • c )  06:56, 10 October 2015 (UTC)
 * Wiki rule: you need a RS to say that growing wheat is not an economic activity. Rjensen (talk) 07:45, 10 October 2015 (UTC)
 * If I go chase down a RS that meets that requirement and add it to the article, someone else can find another RS that contradicts it. That's the nature of the word "economic" -- reliable sources differ as to its meaning. We need to come up with a more precise way of saying it without using an ambiguous word like "economic".  Sparkie82 ( t • c )  08:24, 10 October 2015 (UTC)
 * I changed to make it to make it less ambiguous, however, it is now has less precision. I think the intro should at least touch on the key aspect of Wickard, i.e., that it "jumped the fence" to allow regulation of activity that itself is not trade.  Sparkie82 ( t • c )  18:57, 10 October 2015 (UTC)
 * I think the following is a solution that handles the problem. Filburn was a test case. The goal of the business interests that financed the legal challenge all the way to the Supreme Court was to convince the Court to declare the entire federal crop support program unconstitutional and thereby end it. The Constitution gives the Congress the power to regulate commerce between the states. Congress decided that wheat was an important part of interstate commerce, and the growing of wheat therefore played a critical role. If farmers purchased wheat to feed their animals, that obviously was commerce. If farmers grew wheat only to their animals, that also affected interstate commerce. The Filbert decision supported what Congress had done, and said the Constitution enabled congressional regulation that included economic activity that was only indirectly related to interstate commerce. It puts the emphasis not so much on the language, but on the intent of the legislation and its opponents, which is the aspect that interests historians. Rjensen (talk) 22:09, 10 October 2015 (UTC)

Revisiting this issue... Gonzalas v. Raich relied on Filburn to ban the non-economic activity of growing cannabis at home for personal use. I also mentioned the historical context of the case being heard shortly after the US entered WWII. I couldn't find any sources discussing the context of wartime SCOTUS decisions, but it would be nice to add them to the article.  Sparkie82 ( t • c )  03:02, 16 May 2016 (UTC)