Terry Jeffrey

Before U.S. District Judge Henry Hudson ruled in Cuccinelli v. Sebelius that Congress does not have the authority to force Americans to buy health insurance, there was the case of Wickard v. Filburn, which decided the question of whether Congress can tell a farmer how much he can farm.

Even after the Supreme Court decides Cuccinelli v. Sebelius, and no matter how it decides, Wickard v. Filburn will stand -- a marker of the incremental erosion of the constitutional limits on federal power.

In the fall of 1940, Roscoe Filburn committed the seemingly innocent act of planting 23 acres of wheat on his Ohio farm, thereby provoking the wrath of the Franklin D. Roosevelt administration.

You see, the Roosevelt administration, carrying out the Agricultural Adjustment Act of 1938 (enacted by a Congress boasting a massive Democratic majority), had ordered Filburn to plant no more than 11.1 acres of wheat.

Filburn did not comply. He figured he could grow wheat wherever he wanted on his own farm. He planted 11.9 acres more than the administration gave him permission to plant.

This set in motion a constitutional conflict, and in this particular case, the Constitution lost.

The Department of Agriculture, headed by a man named Claude Wickard, penalized Filburn $117.11 for growing 11.9 acres of unauthorized wheat. Filburn refused to pay. The case went to the Supreme Court.

The issue was simple: Did the Commerce Clause of the Constitution give Congress the power to tell Filburn how much wheat he could grow on his own land? The clause says: "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Congress and FDR claimed they had the authority to tell farmers how much of their own farmland they could use because farm products were traded "among the several States." But Filburn said the extra 11.9 acres of wheat he grew on his farm would never leave his own property, let alone the state of Ohio. He intended to use it himself, feeding some to chickens and livestock, reserving some for seed, and grinding the rest into flour to consume in his home.

Supreme Court decided to use Filburn's case to expand the power of Congress, through an imagined authority of the Commerce Clause, so that the federal government would be able to reach right into Filburn's kitchen and figuratively, if not literally, snatch the homegrown bread from his family table.

The court ruled that Filburn's growing and consuming wheat at home could effectively be construed as an act of interstate commerce -- and thus regulated by Congress -- because it spared Filburn from having to buy someone else's wheat.

Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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