The Forgotten Case: Wickard v. Filburn, 317 U.S. 111 (1942)

Schools have forgotten about the key Supreme Court case that set the conditions for the expansion of the US Federal Government. We should remember it – and work to reverse it.

“The Constitution is gone.”

– Supreme Court Justice McReynolds upon retirement in 1941 (Ganoe, 1945).

Introduction

US federal government power has changed dramatically from its limited nature at the founding of the republic, where powers were envisioned as limited and primarily focused on international affairs, to an expansive one with widely accepted federal dominance over the states. While this change has been incremental, one Supreme Court decision stands out as a critical legal turning point in our nation’s official view of federal power and of the doctrine of separation of powers. That case, Wickard v. Filburn (317 U.S. 111, 1942), marks a clear transition from the originally envisioned limited federal state to the one we have today, where many citizens, and many jurists, find any limitation to the powers of the federal government to intervene in the affairs of citizens as indefensible. In legal terms, the case illustrates a transition from mechanical jurisprudence to one dominated by legal realism, ensuring an end to almost any restraint on federal action. The implications of this majoritarian decision have been far reaching for the court, the Congress, the states, and the people, arguably enabling many great societal advances, but also containing within it a real threat to individual liberty and national unity. Unfortunately, in my experience, few public policy students have ever heard of this case. It should not be forgotten, in fact should be reversed, as it led to both a reduction of individual liberty and a disposition towards majoritarianism both in the courts and the national political culture.

Expanding the Role of the Federal Government

In 1929, while serving as New York’s Governor, and in response to the progressive programs of Herbert Hoover, Franklin D. Roosevelt (FDR) remarked that, “there is a…dangerous tendency, on the part of our national government, to encroach, on one excuse or another, more and more upon state supremacy. The elastic theory of interstate commerce, for instance, has been stretched almost to the breaking point to cover certain regulatory powers desired by Washington” (Schwartz, 2012). His view, common at the time, was that the federal government had limited powers to regulate intrastate commercial activity, and that attempts to do so represented an unconstitutional extension of federal power. According to FDR, reform was needed to return to two of the nation’s founding principles, limited federal power and respect for the separation of powers as detailed in the Constitution. Many today would agree.

Of course, by the time FDR became President, he famously abandoned this position, advocating for a revolutionary expansion of the federal state, and threatened to expand the number of Supreme Court Justices in that quest (Kalman, 2005). Relating to commerce specifically, his administration, and the Democratic controlled congresses of the late 1930’s, passed a series of regulatory acts intended to manage the economy during the Depression (Democrats controlled the House of Representatives in 1931-33 and both houses of Congress from 1933 until 1947). Many of these were challenged in the courts (Ganoe, 1945). While the cases varied, a reading of them reveals a massive shift in the jurisprudence related to federal authority over the economic actions taken within a state and by individuals, and specifically related to what constituted intrastate commerce. “In terms of court precedent, the Roosevelt court was, in a real sense, engaged in a constitutional revolution” (Ganoe, 1945). That revolution was successful, and one statistic is illustrative and informative. In the seven years Ganoe documents, not a single act of Congress was deemed unconstitutional, despite the new federal activism, and more than twenty previous decisions were overruled, with many more “modified and qualified by the process of interpretation” (Ganoe, 1945). That revolution included the move from a more “formalistic approach” which limited the federal authority, to “more realist view” that focused on “needs of society” and the “federal authority needed to preserve it” (Barnes, 2017). This was a shift from mechanical jurisprudence to legal realism, codified “ultimately” in Wickard v. Filburn in 1942 (Barnes, 2017). It enabled a massive expansion of federal power, which continues to this day.

Definitions – Mechanical Jurisprudence and Legal Realism

Before proceeding further, it is important to define the two competing visions, so-called mechanical jurisprudence, and judicial realism. According to Ganoe (1945), the revolution occurred when a mechanical, or “pragmatic” approach in the interpretation of the Constitution gave way to an assumed “positivism” or legal realism.

Mechanical or Pragmatic Jurisprudence: Mechanical Jurisprudence is a pejorative term coined 1908 by Roscoe Pound, describing the “the common but odious practice whereby judges woodenly applied previous precedents to the facts of cases without regard to the consequences” (Gale Encyclopedia of American Law, 2011). The mechanical jurist interpreted the law as written, not based on what the judge decided was right or just. In contrast, according to Pound, “judges had a special duty to consider the practical effects of their decisions and to strive to ensure that they facilitated rather than hindered societal growth” (Gale Encyclopedia of American Law, 2011). While Pound’s approach may be generally popular, in the context of the Supreme Court the “mechanical” method was traditionally favored (and in many quarters still is) so that the government, represented by the courts, was limited in its ability to turn the Constitution from a specific contract with the people that limited the government’s power (that limitation being a key concern of the founders) into, in the famous words of Justice Charles Evans Hughes, “what the judges say it is” (Charles Evans Hughes, n.d.). A less loaded term for this method would be pragmatic jurisprudence, neatly summarized by Justice Scalia in 2005: “If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach.” (Justice Scalia, 2005, as quoted by Levine, Spencer, 2018). Pragmatic jurisprudence recognizes that the people have an interest in ensuring that judges do not substitute their personal desires for those expressed through the democratic process. Up until the New Deal, this was the dominant view of the Supreme Court (Barnes, 2017).

Legal Realism: Legal realism is a “realist model of judicial decision making, in which judicial ideologies and values play a large role in policymaking” (Gibson & Caldiera, 2011) Advocates claim it is both more faithful to the mission of the court, and a more accurate representation of how judges decide, than mechanical jurisprudence. This view has “carried the day” because, according to the concept’s supporters, judicial decisions are comprised of a balance of what the judge wants to do, believe he or she ought to do, and what they believe they can do, given the legal constraints on their actions (Gibson and Caldiera, 2011).

In the Wickard v. Filburn case, the transition from mechanical to legal realism is evident in a shift in the adherence to the Constitutional text regarding commerce “among the several states” (U.S. Const. art. I, § 8, Clause 3). In a mechanical view, this meant what it said, i.e., interstate commerce. In the legal realism view, it meant something much more malleable, and depended on what the government thought it needed to mean. In legal realism, the common good was the goal of the court, and this view would eventually give the federal government great power over the states, and importantly, the individual.

The Revolution in Jurisprudence – Wickard v. Filburn

Interpretations of the Commerce Clause up to the time of Wickard v. Filburn

The 10th Amendment to the Constitution states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” (U.S. Const., amend. X, § 1.). The Commerce Clause gives the federal government the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (U.S. Const. art. I, § 8, Clause 3). A plain reading of that clause, in the context of the 10th Amendment, would indicate that other powers related to commerce, such as the regulation of intrastate commerce, would be reserved to the states, or to the people. The Supreme Court had made multiple decisions regarding this clause in the years prior to Wickard v. Filburn. These generally reflected the mechanical view that interstate commerce meant just that, commerce between the states. The key case was United States v. E. C. Knight Co., (156 U.S. 1, 1895), where the court found a distinction between manufacture and commerce, and that the federal government had no authority to regulate manufacture, as it was local and thus not interstate commerce. Additionally, the justices asserted that an attempt to discern the “secret and changeable intention of the producer” to engage in interstate commerce would produce a paralyzing situation, one “less likely to have been what the framers of the Constitution intended” than “could be imagined” (156, U.S. 1, 1895). Basically, the court found that to be interstate commerce, and thus subject to federal regulation, an activity needed to be a direct and substantial part of the stream of commerce between the states. That precedence held relatively firm until the New Deal. In 1905, Justice Oliver Wendell Holmes, Jr. applied it again in Swift & Co. v. United States (196 U.S. 375, 1905). This strong precedent was officially rejected in the Wickard decision.

Political Climate in 1941 – Crisis, Mandate, and the Threat of Court Packing

In 1932, FDR took the presidency at a time of unprecedented crisis. The Great Depression had severely damaged the national economy. Unemployment, which had been at 3.2% in 1929, stood at 23.6%. It would remain in double digits until 1941, when it dropped to the still relatively high 9.9% (Amadeo, 2021). Roosevelt, who had in the past dabbled with admiration for the efficiency of the new political concept “fascism” and its aggressive government interventions that were, at the time, proving successful in lowering unemployment (Walkom, 2009), wanted muscular intervention in the economy, which he operationalized in the New Deal legislation. During his first term, the Supreme Court was less than cooperative. In 1936, however, the court’s direction changed. First, there had been a move towards a more modernist approach to the Constitution and the emergence of the view that the Constitution was a living document that had to change with the times to be relevant. This began to influence jurisprudence beginning in the 1920s. Second, Roosevelt was reelected in 1936 with the largest majority in over 100 years, and clearly had a mandate. Finally, Roosevelt, with this mandate, pressed his New Deal programs and threatened to “pack the court” by adding justices to get his way (Kalman, 2005). While debate continues today as to the extent of this political pressure on the change to come (Kalman, 2005), it is hard to believe that it did not influence court decisions. Roosevelt’s court appointments were all contingent on their support to the New Deal and the justice’s personal connection to him (O’Brien, 2020). This could not have escaped their notice. Like all political actors, judges “desire, in the words of Adam Smith, ‘not only to be loved, but to be lovely’” (O’Brien, 2020). The pressure of the economic situation, the threat of court packing, and the political mandate held by FDR combined with an already changing view of mechanical jurisprudence, set the conditions for substantial adjustment to the court’s view of the regulatory prerogatives of the federal government.

Justices are not immune to the political climate in which they preside. Legal behavioralists are right to observe that “[l]aw is vague, internally inconsistent, revisable, [and] otherwise not amenable to a formal process of neutral application of logical deduction” (Gillam, 2001). The commerce clause cases in 1936 were not such cases, however, as precedent was strong and the text relatively straight forward. Yet, the political climate favored cooperation with the President, and the court complied, forever changing the country.

Specific Case History

The Wickard v. Filburn case is itself simple. To understand the change it marks, however, several other cases should be mentioned. First, in Swift & Co. v. United States, 196 U.S. 375 (1905), Houston East & West Texas Railway Co. v. United States, 234 U.S. 342 (1914), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the court had established a strong mechanical precedent, asserting that “if Congress wished to regulate intrastate activity, the activity must bear a direct and substantial relationship to some traditional aspect of interstate commerce” (Barnes, 2017). By 1937, however, in National Labor Relations Board v Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), the court had adopted its more flexible approach. In that case, the court determined manufacturing operations could be part of the stream of commerce and, therefore, the appropriateness of federal regulation could no longer be automatically rejected on the grounds that they were not. Instead, the court ruled that what mattered was the degree to which such activities impacted commerce, and eventually, the economy – a legal realist view. This was a “fundamental shift in [the court’s] commerce jurisprudence” (Barnes, 2017), but the shift was still clouded by the intent of the manufacture to include commerce that extended beyond a state’s border. The shift did, however, set the stage for a full transition in Wickard.

The specifics of the case, as mentioned, are straightforward. Roscoe Filburn, an Ohio farmer, used his wheat crop to feed his livestock. He did not sell it, nor did he ever intend to use it for purposes other than his own. The Roosevelt Administration, through the Department of Agriculture, had initiated production limits to stabilize wheat prices. Filburn exceeded those limits and was fined by the agency, led at the time by Claude Wickard. The fine was small, but Filburn sued, claiming his activity in no way constituted interstate commerce. Filburn won, but the government won a reversal in the Federal Court of Appeals. Filburn turned to the Supreme Court. The court considered the case in 1941, deciding for the government in 1942.

Decision

While there were some side issues, these were not central to the case. What was central was the Constitution’s ability to constrain the actions of Congress vis-à-vis the states, which claimed regulation of intrastate commerce as a police power. Tracing the history of the question, the court found unanimously for the government. Justice Robert Haughwout Jackson wrote the opinion for the court, stating that “the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be ‘production,’ nor can consideration of its economic effects be foreclosed by calling them ‘indirect.’” Most importantly, they also found that due to the important conditions at the time, “the mechanical application of legal formulas [is] no longer feasible.” Thus, given that any activity regarding wheat had some impact on the government’s desired end, the “power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations” (italics mine). In effect, what mattered was what the government believed it needed to do to exercise its power for the public good - classic legal realism.

Implications and Current Practice – A Majoritarian Preference

The Supreme Court is seen by many citizens as the final arbiter of the Constitution, even though the founders saw that arbiter as the people themselves. The Constitution codifies the supreme law of the land, and the independent branches, including the judiciary, appeal to that law, and thus the people, who are the “principal” (Hamilton et al., 2009), when they pass judgement on the constitutionality of a measure (Prakash & Yoo, 2003). The Supreme Court is a “deputy” of the people, entrusted with interpreting laws, but as Hamilton wrote in Federalist 78, the deputy cannot be “greater than his principal.” In practice, the people have entrusted the court to protect them from the expansion of government power, even though, paradoxically, the court is the government.

There is no doubt that the expanded role of the federal government, marked, in a large sense, with the Wickard v. Filburn decision, has been a bulwark in the protection of individual liberties against the depredations of the state, i.e., the majority. That said, the court in this case sided with the majoritarian interest against individual liberties, deciding that, in the quest of what Congress believed was the common good, the government could expand its powers beyond the formal language of the Constitution, and impose regulations on non-interstate. Charles L. Black, Jr., one of the nation’s most respected constitutional law scholars, pointed to the conflict of the court acting as an agent of the government, because it is part of the government. “[T]he Supreme Court, without a single change in the law of its composition…placed the affirmative stamp of legitimacy on the New Deal, and on the whole new conception of government in America” (Black, quoted in Rothbard, 1974). Rothbard considers this a clear imposition on the freedom of the individual, citing Black, that the New Deal decisions “transformed judicial review itself from a limiting device [i.e., a check on government power vis-à-vis the individual] to yet another instrument of furnishing ideological legitimacy to the government’s actions” whereas the “verdict of ‘constitutional’ is a mighty weapon for fostering public acceptance of ever-greater government power” (Rothbard, 1974). In Wickard, the court provided legitimacy to an expansion of power and changed the Constitution, de facto, without an appeal to the people. The deputy became the principal. This should have been done via a Constitutional Amendment, but the court set a new precedent, wherein the government (the deputy) could change the plain meaning of the Constitution if the conditions warranted, without an appeal to the people (the principal). This opened the door for federal legislation of nearly any activity related to business or economic enterprise, a vast expansion. Federal government powers were no longer to be few and enumerated, as the founders intended, but virtually unlimited. The implications were felt immediately.

Growth of the Federal Power since Wickard

The cultural, legal, and regulatory change that was reflected in the Wickard decision is evident in two empirical measures of federal government size and reach: federal expenditures as compared to those of the states and localities, and as compared to national Gross Domestic Product (GDP), and the breadth of federal regulation, as reflected in the number of federal regulations that impact the lives, and limit the freedoms of, American citizens.

Spending: In 1930, the federal government accounted for 32.1% of total government spending in the United States, as compared with state and local governments, which accounted for 67.9%. Federal spending reached a majority percentage under Roosevelt, driven by the New Deal and World War II. Yet, even when the war ended, it never declined back to the levels held during the previous half of the century. The federal share was 76.1% in 1949, and has remained above 68% since (US Total Government Spending for FY2021 Is Estimated at $10.00 Trillion., n.d.). In terms of percentage of GDP, the change is even more dramatic. In 1900, federal expenditures accounted for 2.3% of GDP. In 1931 that percentage reached 5.4% and was 16.7% by 1949. Today federal spending accounts for 45.4% of GDP. (US Total Government Spending for FY2021 Is Estimated at $10.00 Trillion., n.d.)

Regulations: Another empirical data source is the number of regulations in the federal register. Figure 1, below, illustrates the growth of the Code of Federal Regulations since 1950, and Figure 2 shows the growth of Federal Register from 1936 (Reg Stats, n.d.). The code and register capture all the regulatory activity of the federal government. Clearly many of these regulations are for the good of the people, and many also protect the people from the government. That said, the trend could hardly be more obvious. At nearly the exact moment that the court transitioned from mechanical to legal realist jurisprudence, the regulatory reach of the federal government exploded. Today, few areas of the economy, or daily life, are beyond the reach of the federal regulatory state. Regardless of whether one believes this is good or bad, it is clearly so.

Figure 1: Code of Federal Regulations Growth Since 1950                

Figure 2: Growth of Federal Register (of regulations) since 1936

Culture and Conflict: Limited Government and the Individual

It is more difficult to measure the cultural shift that Wickard enabled, but it is hardly controversial to assert that Americans, including the political class, are far less inclined towards limited government today than they were in the days prior to the decision. Yet the extent of federal power may be the issue of our time. Gary Gestle states it succinctly this way, “since the 1930s, the federal government’s efforts” have been challenged by those who believe “the central state had exceeded its constitutional authority [and this] threatened the very liberty that Americans fought a revolution to secure. Today the split…constitutes a nearly unbridgeable divide. It is the source of many of the country’s current discontents and has paralyzed politics... It may portend the nation’s decline” (Gestle, 2015).

Many see the expansion for the good it has enabled (Social Security, racial equality, anti-poverty programs, etc.), some of which relied on Wickard’s precedent. Still, a substantial number of citizens view the expansion as a direct threat to individual liberty, a threat that continues to grow. The proper way to have resolved questions about this expansion, or agree on its extent, was by amending the Constitution. Proponents, however, found that tool too arduous, and thus “gave up on it…Liberal jurists were clever and sometimes ingenious in putting old clauses to new uses. But their discomfort in doing so spoke to a recognition that their jurisprudence…rested on an insecure foundation” (Gestle, 2015). Our national failure to bridge the divide, by amending the Constitution, is a conflict that shows no sign of abating.

In a contemporary and dramatic example of this divide, Nancy Pelosi was asked in 2009 where in the Constitution the Congress was granted the power to enact the individual health mandate that was part of the Affordable Care Act, to which she responded, “Are you serious?” Her spokesperson later reiterated that this was “not a serious question” (CNSNews, 2011). This quote outraged Conservatives as a signal of distain for Constitutional governance. The sentiment expressed by Pelosi has resulted in an “originalist” movement that seeks to reverse its trend, and the conflict between it, and the living constitutionalists, is severe and strident, as evidenced by recent Supreme Court nomination hearings. Recent nominees, notably Neil Gorsuch, have signaled a return to a more originalist view, and the attacks on them have become more strident. Gorsuch often refers to pragmatic jurisprudence. Referring to Justice Scalia, he said, “[Scalia] reminded us that words matter — that the judge’s job is to follow the words that are in the law — not replace them with words that aren’t” (NBC News, March 20, 2017). Democrats on the committee expressed concern that his nomination would signal a return to a cold and impersonal court.

As government power expands, individual power declines. While the federal government has been remarkably successful in using its power to protect the rights of individuals, the imposition of power onto the population is hard to ignore, and the potential increasingly exists for abuse of the individual at the hands of an ever-more-powerful state. While many people today see the government as the “apotheosis of society” and “an amiable, though often inefficient, organization for achieving social ends” no government “does in any accurate sense ‘represent’ the majority of the people” and even if it did, the minority would still be subject to coercive power, a power that can, potentially and quickly, become antithetical to their individual liberty (Rothbard, 1974). “Briefly, the State is that organization in society which attempts to maintain a monopoly of the use of force and violence in a given territorial area” (Rothbard, 1974). By shifting the court’s perception of limited government in Wickard, the Supreme Court enabled an expansion of that power, without the consent of the governed, and paved the way for an almost unstoppable majoritarian preeminence in American governance.

Conclusion

Historian Amity Shlaes stated it clearly: “Wickard became established law. One administration after another has hidden behind the generous cover of the ruling” to achieve its ends (Shlaes, 2010). The revolution in jurisprudence that the decision represents has ushered in an era of massive federal government growth in size, scope, and power. The way this was accomplished has not been accepted by all the people, leading to a severe political divide between supporters of the change and those who view this expansion as a direct threat to liberty. Despite the individual protections oftentimes enabled by it, the decision has diminished the power of the individual (and the states) vis-à-vis the federal government. The reach of the decision should be curtailed. This has proven difficult. But again, quoting Shlaes (2010), that is “what earning the ‘consent of the governed’ is all about.”

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