In the Aggregate

“A precedent embalms a principle.” – Benjamin Disraeli

Roscoe Curtiss Filburn (1902–1987) was a fifth-generation Ohio farmer. Nothing about the 95-acre plot of land he worked was particularly remarkable, but Filburn would ultimately play a central role in a legal case that fundamentally altered the arc of US history. For the 1940-41 growing season, he planted 23 acres of wheat, a crop he did not intend to sell on the open market. Instead, he judged that to be the amount his family and farm animals required for food, with a bit set aside to seed the next cycle. The management of his private farm had always been the exclusive purview of the family, and Filburn saw no reason to seek permission from the US federal government to do with his property as he saw fit.

Despite the fact that the wheat never left his farm, the government told Filburn his actions ran afoul of the Agricultural Adjustment Act of 1938, one of a series of constitutionally dubious New Deal laws passed by Congress at the urging of President Franklin Delano Roosevelt (FDR). Bureaucrats at the Department of Agriculture used the law to determine that Filburn was allowed no more than 11.1 acres of wheat and fined him $117.11 for exceeding his centrally planned quota. The price of gold was $35 per ounce in 1941, making his fine the equivalent of nearly $13,000 in today’s hard money.

The FDR administration had decided that higher wheat prices were in the national interest and independent actors like Filburn were a threat to that objective. Filburn sued the head of the US Department of Agriculture, Claude Wickard, and initially prevailed in federal court. Wickard appealed to the US Supreme Court, and in November of 1942, the Court—perhaps mindful of FDR’s threats to pack it should his ambitions be impeded—handed down one of the most egregiously unconstitutional decisions in American history. It ruled that while Filburn’s actions in no way directly impacted interstate commerce, the aggregate impact of too many farmers acting similarly would. Therefore, the Agricultural Adjustment Act of 1938 was deemed constitutional, and Filburn’s fine must be paid.

As described by Utah Senator Mike Lee in his outstanding book The Freedom Agenda, this expansive reading of the Commerce Clause explains how the US federal government now infiltrates nearly all aspects of private life:

“Wickard