Home / General / “Keep reading <i>McCulloch</i> till you understand it”: Why <i>Wickard</i> Was Obviously Correct

“Keep reading McCulloch till you understand it”: Why Wickard Was Obviously Correct

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Wheat_harvest

In comments yesterday, we heard familiar arguments that Wickard v. Filburn was wrongly decided.  But it wasn’t, and attempting to place restrictions based on the federal commerce power based on the arguments raised in Wickard would be a incoherent fiasco, just like all previous attempts to arbitrarily limit the commerce power were.

The facts of Wickard are straightforward:

The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption, and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee’s 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940, before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which, under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien.

For the reasons I stated yesterday, this is really an easy case. The wheat market created collective action problems in an insterstate commodity market. Article I explicitly empowers Congress to address these problems. Quotas on wheat production are a reasonable means of addressing these problems. The act is therefore constitutional as applied to this case.

Critics of Wickard miss the boat because they come to the case as if it is an individual rights cases rather than a case about the scope of governmental power. (It’s not a coincidence that most critics of Wickard tend to oppose federal regulation of the economy; it’s also not a coincidence that Filburn also brought a Fifth Amendment claim. Most of these federalism cases are just libertarian economic arguments in thin disguise.) They focus on whether Filburn, when he grew some winter wheat he intended to consume himself (and some of which he sold, free riding on federal regulations he refused to abide by, and some of which he fed to his commercial livestock), was engaged in interstate commerce at this precise moment. But that’s not the right question. The right question is whether wheat quotas are a reasonable part of a program to regulate an interstate market. They are, and that ends the case in the government’s favor. The federal government has the power to regulate interstate commerce, and it has the powers necessary and proper to regulate interstate commerce. The claim that plenary federal powers to regulate an interstate market cannot be applied to individual cases necessary to make the regulation effective is nonsensical. As Jackson put it, “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.'”

At this point, opponents of Wickard will turn to the slippery slope: “I can see the day coming when even your home garden is gonna be against the law!” But Wickard does not actually create an absolutely unlimited federal police power; Lopez did not overrule Wickard. Could Congress apply quotas to a small, noncommercial home garden? Maybe — if it could show that such a regulation was reasonably related to a broader regulatory scheme. Wickard doesn’t tell us, because the quotas were applied to commercial farms and Filburn was a commercial farmer. There’s not really much point in considering whether Congress can apply quotas to small noncommercial home gardens growing legal products, because 1)it’s not going to do this, and 2)in any extraordinary hypothetical circumstance where it would do this it’s likely that the regulation would be justified by a reasonable relationship to a broader regulation of interstate markets.

The slippery slope most certainly does go the other way, however. If the criticisms of Wickard sounds familiar, it’s because they’re exactly like the arguments used to assert that the Affordable Care Act was unconstitutional. “People who do not buy health insurance are not, in doing so, engaged in interstate commerce.” And it’s true! True — and completely irrelevant. The health insurance exchanges are a concededly valid regulation of interstate commerce. Guaranteed issue without a mandate would cause the exchanges to fail. Therefore, the mandate is constitutional even though it does not directly regulate interstate commerce. Article I gives the federal government the powers reasonably thought to be necessary to address problems of interstate commerce. Wickard was correct; the Court’s holding on the mandate in Sebelius was wrong.

And the problems (if you’re not a libertarian, I mean) with the arguments made by Wickard critics don’t end there, and that goes double if you think that it would exceed the commerce power for the federal government to regulate abortion clinics. Having to show that every business was engaged in interstate commerce before occupational health and safety or environmental regulations could be applied would be a disaster. Forcing the federal government to, at a minimum, show that a business was more like Heart of Atlanta and less like McClung before civil rights laws apply would be a disaster. For most Wickard critics, of course, these outcomes would be features, not bugs. But there are a few liberals who would be happy to go down this conservertarian rabbit hole because medical marijuana in California. Thankfully, Stevens et al. were much smarter than that.

I will conclude by turning things over to Akhil Amar:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document, it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

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  • Steve

    If I don’t like something it must be unconstitutional. The TPP must therefore be unconstitutional because it is bad economic policy.

  • JMP

    The arguments against Wickard are so baseless, they are accepted by Libertarians. If an argument is supported by people who are that deliberately obtuse and out of touch with reality, then that’s a good sign that it’s so stupid it deserves to be rejected out of hand.

    • SP

      Ah, the general form of the Argumentum ad McArdle

    • hylen

      The arguments against Wickard are so baseless, they are accepted by Libertarians.

      This just may win the internet today. Votes are still coming in.

  • DrDick

    There is a very short, steep, slippery slope from Libertarianism to insanity.

  • joe from Lowell

    Wow.

    I must have read a thousand denunciations of Wickard when I frequented the Reason blog, and this is the very first time I have ever seen someone bring up the fact that the appellant was growing wheat for sale.

    Every single one of those discussions assumed that he was growing grain only for consumption on his own farm, not selling it, and that the interstate-commerce angle was that he wouldn’t have to buy wheat from another supplier.

    • Denverite

      Oh, it’s more than that. It’s not even like Filburn was barred from selling wheat or anything. He just got a lower price for the wheat that he did sell than if he hadn’t exceeded his quota.

    • nostack

      That’s actually how we learned it in law school, and arguably that’s defensible, since whether he was actually selling it is irrelevant to the holding.

      Lemieux’s reading actually is a cleaner version of the argument: Congress can regulate wheat farming because it involves interstate commerce; guy was growing wheat; guy falls under purview of law whether he was involved in interstate commerce or not. Intellectually that’s easier to swallow than the idea that one guy, on one farm, by application of the Kantian Categorical Imperative, affects the wheat market.

      But even if, in practice, Congress would never pass a law about vegetable gardens, I have to tell you that I don’t like it having the power to do so.

      • Pat

        Congress can tax and regulate pretty much whatever it sees fit, given that many activities involve the exchange of money.

        In many cases, Congress regulates until it is brought back into line through the courts.

      • Scott Lemieux

        since whether he was actually selling it is irrelevant to the holding.

        This is true, although the sanitized version of facts does help advance the dumb “now the feds will stop you from growing broccoli!” slippery slopes.

        I have to tell you that I don’t like it having the power to do so.

        The fact that powers can be exercised unwisely does not make them non-existent.

        • Manny Kant

          I thought we were supposed to be terrified that the federal government will force us to eat broccoli.

          • Scott Lemieux

            It will force us to eat broccoli grown on liberal campuses where students are taught that all cultures are equal, of course.

        • nostack

          “The fact that powers can be exercised unwisely does not make them non-existent.”

          Indubitably! But while congress has the power to regulate interstate commerce, and pass laws necessary to give those regulations meaningful effect, the question then becomes whether this is necessary, etc. And I think that’s a spot where reasonable people can differ–especially when the argument that this is necessary is explicitly couched in phrases like,

          [quoting from syllabus b/c at work and don’t have time to pick out the exact quotes from opinion]

          “the production of wheat for consumption on the farm may be trivial in the particular case is not enough to remove the grower from the scope of federal regulation where his contribution, taken with that of many others similarly situated, is far from trivial”

          and

          “A factor of such volume and variability as wheat grown for home consumption would have a substantial influence on price conditions on the wheat market . . . [in part] because, though never marketed, it supplies the need of the grower which would otherwise be satisfied by his purchases in the open market.”

          Like, I can see the argument in favor; I think Mr. Lemieux gives an excellent account of it. But I still think it has to do with how you frame the issue, and one’s policy preferences. Characterizing it as a slam-dunk obvious result seems to be overselling it.

          The fact that I personally favor government regulation of business in general, doesn’t mean I don’t get a little queasy seeing how the sausage gets made.

          • As I wrote in the last thread, dude wasn’t some random schmoe raising wheat in his backyard for his personal use. He was a wheat farmer looking for price support.

            He was deeply emeshed in the regulatory activity and looking for a loophole.

            • Scott Lemieux

              Precisely.

            • tsam

              So…a forerunner to Cliven Bundy is my reading. Is that a reasonable comparison?

      • Denverite

        Yes, and I don’t like that Congress has the power to institute a mandatory draft of all able-bodied persons between the ages of 16 and 50. But it probably does. I’ll keep my fingers crossed!

        • joe from Lowell

          I don’t understand how the draft isn’t involuntary servitude.

          • Murc

            Yeah, me neither. I mean, the government is literally threatening you with prison time (or worse) if you refuse to go into battle on its behalf.

            The fact that that it is legal baffles me.

          • Joe_JP

            Because like jury duty it is not considered for legal purposes the type of “servitude” that counts. Likewise, every form of communication is not protected “speech.”

            The 13A language goes back to the NW Ordinance. At the time, you could be required to serve in the militia. Where you might get shot at. It was not considered, nor is jury duty (where you are required, at significant cost at times, to serve — it is not like involuntary servitude is only wrong when it is life or death) or education of children (again, not trivial work there) etc., involuntary servitude as that term is labeled.

            It was and is seen as a duty of citizenship.

            • Denverite

              Yes, this. Basically, the Article I constitutional authority to raise armies and maintain a navy is interpreted to include the ability to institute a draft, and going back nearly a century, SCOTUS has said that the framers of the Thirteen Amendment weren’t intending to alter or curtail that authority.

              They do have to pay you enlisted wages though!

            • joe from Lowell

              Your explanation of the societal attitudes that kept conscription outside of the category “involuntary servitude” makes sense to me. Societal definitions direct the application of the language in the Constitution, and that was the societal definition.

              But I have to disagree with your claim “and is.” We haven’t had militias for a long time. Military service hasn’t been a social expectation for about 4 decades.

              • Joe_JP

                “Societal definitions” include a reasonable application of the terms overall. It is a reasonable policy choice (and in some cases a sensible one) to have militia duty, including in certain situations (e.g., a flood requires it or something). And, it would not be “involuntary servitude.” It also wouldn’t be if a draft would be in place in the case of a war or after-war lingering trouble ala the opening days of the Cold War. An open-ended draft power might not be proper.

      • dr. fancypants

        But even if, in practice, Congress would never pass a law about vegetable gardens, I have to tell you that I don’t like it having the power to do so.

        In theory, the value of any food you grow in your garden for your own consumption should be considered taxable income to you. I hate that idea–and it seems crazy that the IRS has the power to start collecting taxes on home-grown veggies–but I’m also comfortable that the IRS will never actually take that position unless it wants to be swiftly dismantled.

      • thylacine

        But even if, in practice, Congress would never pass a law about vegetable gardens, I have to tell you that I don’t like it having the power to do so.

        Man, you’re really not going to like what States have the power to do.

    • Murc

      I must have read a thousand denunciations of Wickard when I frequented the Reason blog, and this is the very first time I have ever seen someone bring up the fact that the appellant was growing wheat for sale.

      Yeah, ditto.

      I mean… that eliminates the entire controversy, doesn’t it? I suppose you could go so far as to argue he wasn’t selling it across state lines, but that’s a long way to go.

      • nostack

        But that’s not what’s offensive about Wickard. If that’s all Wickard was about, it wouldn’t be the least bit noteworthy. It’s that Wickard explicitly says Congress can do this even if he’s not selling it.

        • mds

          Yeah, that’s the overreaching part to me, too. Congressional regulation of commercial wheat production, fine. Actually applying the regulation to a commercial entity involved in wheat production? That just goes too far.

          • Scott Lemieux

            Congressional regulation of commercial wheat production, fine. Actually applying the regulation to a commercial entity involved in wheat production? That just goes too far.

            Exactly.

    • Joe_JP

      One place to go actually is the argument for Gonzalez v. Raich where the overall point was used to try to differentiate the growing for non-sale of medicinal marijuana from Raich.

      And, though it might not be different enough (given the necessary and proper regulation of the overall scheme as Scalia noted) , there is a point there. Wickard assumed for the sake of argument really that it was purely for personal consumption to set forth a cleaner rule. But, looking at the facts, the case is even easier.

      • Joe_JP

        (the last word in the first sentence should be “Wickard.”)

  • Srsly Dad Y

    [was supposed to be reply to joe]

    Yes, but it’s true that the Court (rightly) didn’t care where the wheat went —

    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…. it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce ….

    • joe from Lowell

      Thanks, you two.

      Well, actually, now I don’t get to hate on the libertarians as much, so…

      Still, thanks for the info.

  • yet_another_lawyer

    So, I’m a lawyer but my constitutional law knowledge is limited to the courses I had to take in law school. I may be missing something obvious but here goes.

    The above argument strikes me as broadly persuasive, but there is something I don’t quite understand: If the commerce clause is truly that broad-reaching, then why is Article I written the way it is? For instance, what’s the point of the clause that gives Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” It seems like, even at the time of ratification, that if the commerce clause is truly this broad, then Congress would have this power anyway. Similarly, creating uniform rules of bankruptcy would be regulating interstate commerce as much as restricting wheat-growing… yet Congress is explicitly given that power too.

    Under usual interpretation rules, if a document says A, B, and C, and one interpretation of A makes B and C irrelevant, while another interpretation of A does not nullify B and C, the latter interpretation is favored, because presumably the drafters didn’t intend to create surplusage. Yet this does not appear to be the case with the commerce clause. Why?

    • Pat

      It could be that the writers felt that promoting the progress of science and useful arts was important enough to spell out additional things they wanted Congress to do.

      • yet_another_lawyer

        Certainly a possibility, although it’s hard to square with the bankruptcy provision given that there’s no statement of purpose.

        • divadab

          I think you’re on to something here. If the Commerce clause is so broad as to permit the federal government to regulate anything that might have an effect on interstate commerce, even if there is no actual commerce, interstate or otherwise involved, then they can regulate ANYTHING!

          This is clearly absurd. Even Wickard supporters on this thread have implicitly admitted it by arguing that the feds would never regulate broccoli because elections or some other nonsense.

          Gonzalez V Raich is the bastard offspring of the execrable Wickard v Filburn – you don’t have to be a libertarian to think this. Just someone who expects reasonable limits on federal powers – which Wickard removes entirely with its absurd logic.

    • Scott Lemieux

      Well, one obvious answer is that in 1787 distinctions between local and interstate commerce were easier to draw. The problem is that sometimes reactionary Supreme Court justices decide that even an an industrialized, interdependent modern economy categories have to be invented so that some arbitrary amount of economic activity is “local” even when it’s not.

      • Murc

        See, the thing is, that seems like a dodge to me. First of all, there was a lot more interstate and international commerce than people think there was even in 1787; lone trappers wandering through the Great Lakes region, months away from the existing borders of any European colony or the US, were active and vital participants in a fur trade that stretched across literally the entire planet. Small farmers in what would become West Virginia were participating in a web of agricultural and cash crop trades that stretched up and down the entire east coast. Etc.

        Second of all, just because something was easier in the past doesn’t mean you just throw up your hands and go “oh, well then” if it becomes less easy in the future.

        • Scott Lemieux

          oesn’t mean you just throw up your hands and go “oh, well then” if it becomes less easy in the future.

          By the same token, you don’t arbitrarily declare regulations of interstate markets to be regulations of local markets because there just has to be some minimum of level of economic activity that’s defined as local.

          • Murc

            This is true, but it also seems to me that it also shouldn’t work the other way around, where you don’t declare that local markets don’t exist.

            • Hogan

              It’s not that they don’t exist; it’s that they’re often embedded in larger interstate markets, and you can’t regulate the larger ones without impinging on the smaller ones.

              • Scott Lemieux

                Right. The commerce clause means that a statute directed solely at farmers in Montgomery County OH would probably be unconstitutional, absent some congressional showing that it was related to some broader regulatory framework. But it doesn’t forbid applying regulations to local markets as part of a regulatory framework that regulates interstate markets.

                • I’d think this is especially true when the “local” or “state based” market was transparently design to circumvent the broader regulatory scheme.

                  And, well, if you’re concerned by regulation of the local, narrow readings of the commerce clause doesn’t prevent states from going bat shit on your kid’s lemonade stand.

        • First of all, there was a lot more interstate and international commerce than people think there was even in 1787

          That may be one reason John Marshall felt the need for McCulloch to be as broad as it was, back in 1819. It seems to me that taking a narrow view of what qualifies as “interstate commerce” was an approach that was abandoned as unworkable pretty early in US history.

      • yet_another_lawyer

        I don’t think this answer is adequate because even at the time, a uniform code of bankruptcy law or intellectual property regime would have had been “regulating interstate commerce” if we take the broad Wickard view of what it means to engage in interstate commerce.

      • JMP

        But surely the Court was right to declare that professional baseball was not interstate commerce because, even though there are teams in many states who travel to others to play, each individual game was only played in a single state, therefore baseball were purely intrastate commerce and exempt from federal law!

      • dilan

        some arbitrary amount of economic activity is “local”

        There’s nothing arbitrary about the argument that the marijuana you grow in your own garden for your own use is “local”, or that it is noncommercial.

    • Srsly Dad Y

      The Constitution was written by a committee. Nuff said.

      • yet_another_lawyer

        Every bill in congress was also written by committee, yet the courts apply the “anti-surplusage” logic to that as well. Same for contracts. Why is the constitution different?

        • Srsly Dad Y

          That’s a very fair question. One answer is that the surplusage canon is only a presumption, and sometimes you can only reasonably read something as surplusage. The Constitution contains a lot of it. E.g., the Postal Clause, the Bankruptcy Clause, and the Patent Clause were all unnecessary in light of the Commerce Clause, but they were inserted to settle 18th-century policy disputes. What to do? Justice Thomas argues that the surplusage “rule” requires us to construe “commerce” as not including those things. AFAIK no one has paid attention to him.

  • SP

    Amar’s argument falls apart when it runs into McCutcheon, though- if you have enough money that you can buy enough media to convince the voters that it was your opponent who forced you to buy broccoli even though you were the one that voted for the Scalia Broccoli Act of 2015, then anything goes.

    • Srsly Dad Y

      The argument that the taxing power permits 100% taxation probably also runs up against the Takings Clause at some point, but that line, too, will never be tested.

  • wengler

    I would contend that the Constitution is not a practical document and is not designed to work.

    • catclub

      Evidence? The Senate!

  • Murc

    Okay, Scott, I think I understand Wickard better than I did yesterday, although I’ve been wrong before.

    The issue might be not so much my philosophical stance on the proper interpretation of the commerce clause, but rather my misunderstanding of the facts of this specific case. The thing that brought it home for me is this:

    Wickard doesn’t tell us, because the quotas were applied to commercial farms and Filburn was a commercial farmer.

    So if I’m understanding things correctly, if Wickard had just been, say, a doctor or a lawyer or a carpenter or whatever who decided he did not want to participate in the larger wheat market and was simply going to grow his own wheat for his own use, he’d probably have won, because the regulations in question wouldn’t have applied to him?

    Because that makes a lot more sense, although it doesn’t resolve the deeper underlying questions of the proper interpretation of the commerce clause that Wickard is basically always used as a proxy for.

    • nostack

      Murc, your doctor example is exactly wrong: the regulations WOULD apply.

      “The effect of the statute before us is to restrict the amount which may be produced for market and the extent, as well, to which one may forestall resort to the market by producing to meet his own needs. That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the [p128] scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial” Wickard at 127-28.

      “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Wickard at 128

      • Murc

        So… I’m not any closer to understanding Wickard than I was yesterday, then?

        • rjayp

          Murc,

          Imagine this. Many people grow their own wheat for only their own consumption, never selling so much as one grain. Prices plummet. The commercial wheat market collapses as nearly every wheat farmer goes broke. Those unable to grow their own, go without.

          Market failure ensues. Is Congress justified in adopting a regulatory scheme under such circumstances?

          • Murc

            “Justified” is a tricky word. Congress unequivocally has the power to do many, many things that would not be justified, depending on how you’re using it. The issue at hand is what’s allowed and/or the justifications used to get to “allowed” rather than what would be good public policy.

            I would say that current law is definitely that Congress could adopt a regulatory scheme to address the market failure you describe. I would also say that said regulatory scheme shouldn’t take the form of “nobody can grow and eat their own wheat” on basic moral and ethical grounds, and also that “nobody can grow and eat their own wheat, and we have this power under our ability to regulate interstate commerce” is an insane (to me) reading of the meaning of the word ‘commerce.’

            • I don’t get your concern about the broad meaning of the word commerce.

              First, let’s consider what situation truly insulates home grown wheat from commerce. I can’t buy seed, fertiliser, tilling equipment, threshing equipment, water, (new?) land, etc. Home wheat growing (like home bread baking) to avoid having to pay for wheat (or bread), i.e., to save money seems pretty commerce emeshed.

              Similarly, if I give my neighbour 1 loaf, that’s one thing. If I give them a year’s supply, that’s another. If I give everyone in town a years supply (to break my rival baker), that’s another. Yet, they all involve commerce, just to different degrees.

              Commercial activity does not entail professional, after all! If you improve your house so that it is worth more…you have to pay tax on the increased price even though you haven’t sold (and don’t intend to sell) your house!

              Now, I, too, think laws that regulate such small scale behaviour suck. But because they suck, not because they aren’t commercially related.

              • xq

                Which activities are not commercially related? Everything seems at most a couple of degrees away from commerce.

                • Which activities are not commercially related?

                  Depends on where you draw the line, but basically nothing? Or rather, nothing intrinsicly.

                  Everything seems at most a couple of degrees away from commerce.

                  Sure. When feminists looked at the economic value of things like unpaid housework, childrearing, or breastmilk, it was a significant and important shift. We put things outside the sphere of “commerce” by fiat. It’s not a natural kind.

                • xq

                  OK, so following that reasoning, what kinds of legislation that congress might want to pass are not permitted under the commerce clause? I would think there must be some, or there’s no point in delimiting the powers of congress in the first place.

                • rea

                  what kinds of legislation that congress might want to pass are not permitted under the commerce clause?

                  Gun-free school zones.

                  Civil remedies for rape.

                • xq

                  The liberal judges dissented in both those cases, and I suspect Scott and Bijan would too.

                • Hogan

                  There’s more to the Constitution than the commerce clause. The First Amendment stakes out some pretty broad areas that Congress can’t regulate, even if they have commercial aspects. The common-law right to privacy, Scalia et al. to the contrary notwithstanding, is a real thing.

                • That’s a good question. (Please note that I am in no way a constitutional scholar. I’m just talking!)

                  As a first cut, you could have conflicts with other powers and rights. You can make semi-arbitrary distinctions, e.g., we restrict the notion of commerce to only things that involve monetary exchanges in “the normal course” or some such. You might just have to have some loopholes you’d otherwise prefer closed.

                  You could try to push on interstate (which doesn’t help you with state governments) by looking at scale. So, the power is weakest when the national market effects are weak or random. The problem there is that things don’t stay stable. We formally commercialise more and more of our lives and we aggregate those things very quickly (cf Facebook!).

                • Scott Lemieux

                  The liberal judges dissented in both those cases, and I suspect Scott and Bijan would too.

                  I would probably have at least concurred in the judgment in Lopez. In Morrison, I would have upheld it as a valid enforcement of the 14th Amendment and not reached the commerce clause issue.

                • The liberal judges dissented in both those cases, and I suspect Scott and Bijan would too.

                  Well, as I argue here, the distinction between commercial and non-commercial (or economic vs. non-economic) is really hard to sustain at this level except we’re talking public schools which seem like a governmental function (which obviously has economic impact, but I think there’s some possibility to sustain a distinction between government exercising core governmental functions and e.g., managing a pension fund). But the rational basis line is more appealing to me intellectually. I think gun-free zone stuff is fine qua policy. I’m unclear whether the cumulativeness test requires actual empirical data or just projections (and how do you determine those projections).

                  ETA: Thanks for pushing! It’s interesting and a bit of a relief after the Murc meltdown below.

              • Murc

                I don’t get your concern about the broad meaning of the word commerce.

                Because words have meaning, and because the Constitution clearly makes a broad distinction between interstate and intrastate commerce.

                Now, the fact that it does so is rather stupid as a matter of policy. As a matter of law, it’s an actual fact. As a matter of process, I don’t like it on principle when people decide “well, we can’t actually change this, so we’ll just change the language instead so it says what we want it to say!”

                I find your definition of “commerce” to be incredibly reductive, not useful, and frankly also insulting. Using it as broadly as you do makes literally every single thing I do, possibly including breathing, into a commercial activity. And fuck that noise. I am a person, not an economic unit.

                • Joe_JP

                  I am a person, not an economic unit.

                  You are both. Commerce is made up of various things including persons. Persons work. Persons create things for commercial purposes. Persons buy things and do various things that affect commerce significantly. This includes quite arguably things once belittled as unimportant like those who stay home doing things to support workers.

                  And, hypos are fun, but like the whole ACA says you have to have insurance even if you merely breathe b.s., what actually is generally defined as commerce here is not really that broad. Wickard involves regulation of wheat and farmers who did things for profit.

                  So empty sayings like “words have meanings” doesn’t do it. Along the margins, problems might arise. We can talk theory. But, looking at the actual cases, things are a lot easier.

                • Because words have meaning,

                  May I gently point out that this was a pretty silly thing to say. You aren’t on the “words have meaning” side of things. Italicizing it to emphasise your enormous commitment to this truism doesn’t demonstrate that I am unaware of it or not respecting it in this conversation.

                  (Note I went through several tarter versions of this.)

                  and because the Constitution clearly makes a broad distinction between interstate and intrastate commerce.

                  Sigh. It’s not a great thing to start off with a cri de coeur about WORDS and then be super sloppy with them. It’s possible to have a distinction between inter and intra state commerce. yay! But you didn’t stress the inter/intra distinction, you said that “private” growing wasn’t *commerce* (by definition). That is what my comment challenged. And as words do have meaning, oh never mind.

                  Now, the fact that it does so is rather stupid as a matter of policy. As a matter of law, it’s an actual fact. As a matter of process, I don’t like it on principle when people decide “well, we can’t actually change this, so we’ll just change the language instead so it says what we want it to say!”

                  I have no idea what you’re saying here.

                  I find your definition of “commerce” to be incredibly reductive, not useful, and frankly also insulting.

                  So is that why you decided to be all wild eyed above? It didn’t help your argumentation, fwiw.

                  Note that I’ve not offered a definition at all (WORDS! MEANING!). I’ve pointed out how lots of activities which either are or are continuous with ones you seem to think are obviously and…necessarily?… non-commercial in fact are and can be commerce related. You’ve offered no definition at all! Nor any principle for determination!

                  Using it as broadly as you do makes literally every single thing I do, possibly including breathing, into a commercial activity.

                  And so? Air consumption isn’t pertinent? How about when scuba diving? Or supplemental oxygen? Breathing isn’t instrinically not commerce related.

                  And fuck that noise. I am a person, not an economic unit.

                  Eh. You’re being rather overdramatic, y’know. I didn’t spit in your face. I didn’t fail to accord you the respect due to you as a person.At least, I can’t see that it is.

                  Look, it intensely irritates me that Market East Station was renamed to Jefferson Station because Jefferson Hospital gave them a ton of money for the naming rights. When I was a kid, we had Veteran’s Stadium and now we have Lincoln Financial Field (for at least another 10 years) and I hate that change. Horrible. But this is just a kind of aesthetic reaction, eh?

                  People teach their kids how to e.g., manage money and lots of other things by paying them to do chores or rewarding them with money for successes. That doesn’t necessarily turn their relationships mercenary. My beloved and I discuss economic trade offs in our lives all the time and choosing to eat in or eat out is heavily mediated by economic (both short and long term) considerations. I don’t see how this degrades our relationship in any way. Some people engage in marriage and sex primarily for exchange or economic reasons and, well, I don’t think less of them for that. Indeed, I don’t think people *should* think less of them for that. People care for or teach children for money, but nevertheless love, nurture, and help raise those children.

                  None of this is degrading at all. I’m sorry that you feel otherwise and thus felt insulted by what I thought was a rather banal set of observations.

                • Murc

                  Well, ignoring your tone policing to focus on something that’s actually a question…

                  I have no idea what you’re saying here.

                  I thought I was being very clear, but, well, to expand:

                  As a matter of policy, our entire federal system is badly designed and it is really quite dumbassed that intrastate and interstate commerce were hived off into separate categories with separate legislative bodies handling them.

                  As a matter of law, the Constitution does exactly that; it established that there is intrastate commerce, and interstate commerce, and that Congress can regulate one and not the other.

                  As a matter of process, I don’t like it when people tie language in knots to get to their preferred policy outcome.

                  Policy, law, and process are three different things and one can think, for example, that things that are excellent policy shouldn’t be arrived at through a process you consider illegitimate, or that just because something is absolutely legal makes it good policy.

                • Well, ignoring your tone policing to focus on something that’s actually a question…

                  Ok, that’s just sad.

                  Where was I tone policing? I don’t object to your tone per se, but your content. And I say exactly how. To dismiss that as tone policing is odd and not really consonant with the respect you (weirdly) demand.

                  I still don’t see the pertinence of your comments. I’ve made no argument about the constitution, the law, or the process, nor have I tied languages in knots to get a policy. This is manifest in what I wrote. Words do have meaning! (I mean that both seriously and mockingly. You completely bullshitted that and keep on going. It doesn’t help. That you distorted the meaning of the phrase “tone police” to do it is amusing.)

                • Hogan

                  I’ve made no argument about the constitution, the law, or the process,

                  And I think that’s the problem. You were taking the discussion in another direction without, shall we say, signaling your turn. Murc’s primary concern is how (or indeed whether) one can find a limit on the Article I Commerce Clause power; teasing out the many possible meanings of “commerce” in other contexts kinda does the opposite of addressing that concern.

                • And I think that’s the problem. You were taking the discussion in another direction without, shall we say, signaling your turn. Murc’s primary concern is how (or indeed whether) one can find a limit on the Article I Commerce Clause power; teasing out the many possible meanings of “commerce” in other contexts kinda does the opposite of addressing that concern.

                  That’s a hypothesis, but I responded to:

                  that “nobody can grow and eat their own wheat, and we have this power under our ability to regulate interstate commerce” is an insane (to me) reading of the meaning of the word ‘commerce.’

                  And here’s my signal:

                  I don’t get your concern about the broad meaning of the word commerce.

                  So…er…I don’t find your hypothesis supported by the evidence? It certainly looked like he was making a semantic point (not a policy point). I don’t think you’ll find a limit to the commerce power in some “plain” meaning of the word “commerce” which was my point.

            • rjayp

              I would also say that said regulatory scheme shouldn’t take the form of “nobody can grow and eat their own wheat” on basic moral and ethical grounds”

              Nobody is arguing it can or should take that “form”.

              …and also that “nobody can grow and eat their own wheat, and we have this power under our ability to regulate interstate commerce”

              Yes. Congress explicitly has that power. Words have meaning. See also the word “regulate”.

            • rjayp

              I would say that current law is definitely that Congress could adopt a regulatory scheme to address the market failure you describe.

              Then Congress can implement a regulatory scheme under the commerce clause that would regulate the activity of a whole bunch of people who, in your view, are not engaged in “commerce” unless you use the term in an ‘insane’ way?

              So where do you draw the line?

              • divadab

                This is the problem – IMHO you draw the line at “Commerce” – you know, actual goods or services crossing actual State lines and paid for with money. Actual commercial activity.

                Where the people arguing that Wickard and Gonzalez are wonderful tie themselves in knots is when they make the argument that “commerce” includes anything and everything – the beating of a butterfly’s wing, the growing of broccoli in your own garden – that MIGHT affect commerce. Effectively, this argument removes all limits on federal powers. If this is what you want, at least be honest about it.

                • dilan

                  To be clear, libertarians are wrong about the commerce clause too. It does include manufacturing. It does include things that bear a clear relationship with interstate commerce.

                  It just shouldn’t include non-interstate non-commerce. That’s why Lopez is rightly decided and that’s why Wickard and Raich are incorrect.

                • divadab

                  @dilan – YES!

    • catclub

      It seems to me that if he had just eaten all that wheat himself, the penalties would never have appeared and he would have no case:

      constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty, and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability

      So the ruling is far more expansive, but he sounds more and more like a stubborn asshole pursuing his rights in the courts.
      He was demanding a marketing card even though he had broken all the rules in order to receive one.

      • Dave W.

        Yeah, he sounds like an earlier version of Cliven Bundy. “You’ve got no right to restrict how many cows I graze on BLM lands, and beside that, I’m not paying any fine/penalty.”

  • Joe_JP

    The last quote sorta sounds like Scalia, who wrote a pretty good concurring opinion in Gonzalez v. Raich on how it is not “anything goes” here but apparently that was another Scalia from the one who joined the joint dissent in the ACA Case.

    • sleepyirv

      Scalia is a “principled” jurist, which is the polite way of saying “massive hypocrite.”

  • That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that, if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law. Cf. Mulford v. Smith, 307 U.S. 38.

    Hahahhahahah.

    • Scott Lemieux

      Jackson really did have some great moments as a prose stylist.

      • I would marry this paragraph.

        • Joe_JP

          Same sex marriage and now this. Alito was right!

  • Gwen

    The problem with anti-Wickardism is that it is looking for a jurisprudential solution to a fundamentally substantive political problem. The best way to prevent the federal government from banning your backyard radish garden is to elect representatives that believe in limited government.

    OTOH, see the discussion regarding political gerrymandering. The Courts won’t get involved, but gerrymandering is a procedural political problem, and there isn’t really a good way to get rid of it through normal political means.

    • divadab

      The Constitution is supposed to limit federal powers – your argument implicitly admits that WIckard removes all constitutional limits on federal powers by citing the electoral remedy for unlimited powers.

      If you accept that “commerce” includes not only actual commerce but potential effects of an activity on commerce, you have stepped into the realm of the absurd. I admit to being really surprised that so many smart people, a lot of them lawyers, find this argument persuasive rather than execrable.

  • rea

    The best way to prevent the federal government from banning your backyard radish garden is to elect representatives that believe in limited government.

    Or, perhaps, proponents of an expanded regulatory state who, however, see no reason to ban backyard radish gardens.

    (I’m fairly sure that nowadays radishes are sold in interstate commerce, although that was not true at the time of the Founders. It’s the invention of trains, trucks, airplanes, telephones, radio, TV, satellites, and the internet that has expanded the reach of the commerce clause, not any change in judicial doctrine)

  • UserGoogol

    Privacy (in the Griswold v. Connecticut sense) seems like it would be relevant to limiting Wickard from extending to personal gardens, or even various forms of private wheat production, although not necessarily the kind Filburn was engaged in. Or for that matter forcing people to eat broccoli.

    • Joe_JP

      The last part is clearly a privacy right. Requiring people to actually use the insurance for certain medical procedures would be a lot trickier (outside of something like vaccines).

      The other two are more iffy though the personal gardens is a maybe.

    • Yes, and as I said above, other rights might help.

      But, congress and the states can intrude in all sorts of ways. They can ban things we might want to eat. They can effectively force us to eat stuff (FLUORIDE!) But I think the “compelling state interest” sort of move might help. The problem is that interests change with circumstances. The state might not have a compelling state interest in regulating private gardens but then it might turn out that we could effectively reduce CO2 concentrations if everyone kept 20 spider plants in their houses.

  • Yankee

    To the extent the market regulators are controlling entry into the market, fine. To the extent government is using force to compel participation in the cash economy even about stuff you do for yourself, not fine. Not gonna argue cases I haven’t read but I think the intra or extramural use is a legitimate factor.

    … We’re not into might makes right today, are we? “Because you could vote them out of office …” … That’s working well where you live? The working folks are setting the agenda?

    • Well, remember we’re only talking Feds anyway. States are free to regulate intra state commerce. So we’d have to rest in a commerce/non commerce distinction and that’s not very tenable (I argue above).

      • Yankee

        Nostack quotes Wickard: “Home-grown wheat in this sense competes with wheat in commerce.”

        Even Wickard has no trouble making the desired opposition. The keyword is “compete”: in a market economy, nothing may be permitted to compete with the market. It’s open and shut.

        • I think this is how they show that Home-grown wheat doesn’t escape being emeshed with commerce. (Whether it “is” commerce or merely entwined in such a way that makes it regulatable directly as commerce or under necessary and proper is a distinction I think pointless as they yield the same outcome, but if you like it, just read my commerce claims as being the expanded disjunction.)

          • Yankee

            Enmeshing home-grown with “commerce” is precisely what I think is bullshit. They must take it, in sense, that feel it.

            Emesh, btw, is the Sumerian god of agriculture, and He wouldn’t approve.

            • They must take it, in sense, that feel it.

              Sorry?

              I don’t get why home-grown is so special. Either you believe aggregation is sufficient to trigger “interstateness” or not. But I don’t see how to sensibly deny aggregation.

  • dilan

    1. The Constitution says nothing about “collective action problems”. It says Congress may regulate commerce among the several states. Whether or not growing wheat for subsistence farming is “commerce among the several states” is the issue. It is ENTIRELY possible that Congress does not have the power to solve every collection action problem.

    2. The only facts in a judicial opinion that matter are the ones in the opinion. The Court’s ruling has NOTHING to do with Filburn allegedly selling wheat. It clearly says that wheat he grows for his own use and that of his hogs may be regulated NO MATTER WHAT.

    3. The slippery slope already occurred. It was Raich. Thanks to Wickard, your own marijuana, grown in your own garden, for your own medical use, is “commerce among the several states”. Nobody’s making a “slippery slope” argument except Scott, who is saying all discrimination laws fall unless Wickard is upheld. (Which isn’t true– McClung is distinguishable from Wickard.)

    But in Scott’s world, the federal government has the right to barge into the house of an old lady growing a pot plant on her sill for her own use, because that’s “commerce among the several states”. That’s pure government tyranny, and a misreading of the Constitution.

    • divadab

      Yes – you put your finger on the central flaw in Lemieux, Esq’s argument. SO many words to justify the unjustifiable and support the hagiography of the Sainted FDR, who bullied the Supremes to give him what he wanted.

    • Joe_JP

      1. The Constitution doesn’t “say” literally various things. But, when applying its terms like “necessary and proper,” things like ‘collective action problems’ can be helpful. Yes, that is tied to certain text, so Mark Field’s first principle is to me too open-ended.

      2. Caps doesn’t change that the opinion also says he used the wheat for commercial reasons; the opinion goes further to provide a clean judicial rule. But, you are making an overly technical point there in respect to the overall argument. He very well could have lost if the opinion rested on somewhat narrower grounds.

      3. There is a gigantic interstate and international industry in marijuana. Congress can regulate it and it is “necessary and proper” to do so by a scheme that closes off its spread. And, the CA scheme realistically did interfere with it. I think she had a liberty claim myself. One of various ways we still have limited government.

      In real life, this wasn’t about some little old lady with a single pot plant. This reminds me of when you suggested if Congress regulates children programming on public airwaves they were akin to a “banana republic.”

    • Scott Lemieux

      The Constitution says nothing about “collective action problems”.

      But it gave Congress the power to regulate interstate commerce, and the powers necessary and proper to the regulation of interstate commerce, to allow Congress to solve collective action problems.

      Also, Jesus Christ is this a terrible mode of constitutional argument. Cf. also “the word abortion does not appear in the Constitution!” “The 14th Amendment says nothing about women!”

      It clearly says that wheat he grows for his own use and that of his hogs may be regulated NO MATTER WHAT.

      No it absolutely doesn’t. It says wheat he grows for his own use (and, of course, wheat he grows for his commercial livestock) can be regulated as a necessary part of a framework regulating an interstate market. This is not a trivial distinction.

      3. The slippery slope already occurred. It was Raich.

      Given that this involved a commodity that can be made illegal to possess or distribute, it’s not much of a slippery slope.


      McClung is distinguishable from Wickard.

      This is true. But you argued that it would be unconstitutional for the federal government to regulate abortion clinics, which would certainly require McClung to be overruled. In addition, your arguments are not distinguishable from the neoconfederate argument in Sebelius, which presumably does not concern you but should concern people with progressive views on health care policy.

      But in Scott’s world, the federal government has the right to barge into the house of an old lady growing a pot plant on her sill for her own use

      It’s bad policy, not tyranny. Not all bad policies are unconstitutional. In addition, state governments would remain free to exercise these “tryannical” powers, so throwing out much of the 20th century regulatory state wouldn’t solve a great deal.

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