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Judge Hudson Takes a Step for Freedom

The opinions expressed by columnists are their own and do not necessarily represent the views of

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.

"But if we assume that it is never marketed, it supplies a need of a man who grew it which would otherwise be reflected by purchases in the open market," said the court.

If people like Filburn were allowed to grow and consume their own wheat on their own land, Congress might be stifled in its effort to artificially inflate the price of the commodity.


Now, one reason the Founding Fathers decided to break with England was their dismay with England's mercantilist system, which generally required colonists to purchase manufactured goods from, or through, England rather than produce them in the colonies.

Hatred for this system inspired a Virginia farmer named George Washington to try to convert his colonial farm into a self-sufficient unit -- where, like Filburn on a much grander scale, he could produce and consume what he wanted without trading with others, especially those in England.

The Framers, who had not forgotten English mercantilism, wrote the Commerce Clause of the Constitution to create a free-trade zone among the American states. Their aim was to facilitate freedom, not restrict it.

Wickard v. Filburn was a step back toward the sort of government control of our lives the Founding Fathers wanted to deny to the new federal government they created. President Barack Obama's health care law goes a dramatic step beyond FDR's Agricultural Adjustment Act of 1938.

If FDR and the Congress of that era usurped for the federal government the power to tell farmers that they could not grow wheat on their own land for their own consumption, Obama and the current Congress (many of whose members were defeated in the November election) are trying to usurp the power to tell all Americans that they must buy someone else's product -- in this case health insurance -- that they do not want to buy.


Hudson, while carefully staying within the Supreme Court precedent of Wickard v. Filburn, correctly understood that the issue raised by Obamacare's individual mandate -- the so-called "Minimum Essential Coverage Provision" -- is freedom itself.

"The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers," Hudson wrote in his opinion. "At its core, this dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal insurance coverage -- it's about an individual's right to choose to participate."

And you thought liberals believed in freedom of choice?

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