Wikipedia Deep Dive

Wickard v. Filburn

13 min read

In 1942, the United States Supreme Court ruled that a farmer feeding wheat to his own chickens was engaging in interstate commerce. This sounds absurd. The wheat never left his farm. He never sold a single bushel. Yet this case—Wickard versus Filburn—became one of the most consequential decisions in American constitutional history, fundamentally reshaping the boundary between federal power and individual liberty.

The farmer's name was Roscoe Filburn. He lived in what is now suburban Dayton, Ohio. And his case would determine whether the Constitution placed any meaningful limits on what the federal government could regulate.

The New Deal's Grand Experiment

To understand Wickard, you first need to understand the chaos it was meant to solve.

The 1930s wheat market was a disaster. International production had surged while American exports collapsed. During the 1920s, the United States exported more than a quarter of its wheat production. By 1940, that figure had dropped below ten percent. The surplus wheat piled up in grain elevators. Railroad cars sat idle, stuffed with grain that had nowhere to go. Some elevators simply turned farmers away. Railroads instituted embargoes to prevent further congestion.

The price of wheat plummeted. Farmers who had borrowed money to buy land and equipment found themselves unable to pay their debts. Banks foreclosed. Families lost farms that had been in their possession for generations.

Congress responded with the Agricultural Adjustment Act of 1938. The idea was straightforward: if there was too much wheat driving prices down, the government would limit how much wheat farmers could grow. Every farmer received an allotment—a specific number of acres they were permitted to plant. Farmers who exceeded their allotment would pay a penalty.

The program worked, at least by its own measure. In 1941, farmers who cooperated with the program received about one dollar and sixteen cents per bushel. The world market price? Forty cents.

But the program raised a fundamental question. Did the Constitution actually give the federal government the power to tell a farmer how much wheat he could grow on his own land?

A Farmer Plants Too Much Wheat

Roscoe Filburn knew his allotment. The government had informed him in July 1940: he could plant eleven point one acres of wheat, with an expected yield of about twenty bushels per acre. They reminded him again in July 1941, before harvest.

Filburn planted twenty-three acres anyway.

He harvested two hundred and thirty-nine bushels more than his allotment permitted. But here's the crucial detail: Filburn never sold this extra wheat. He used it to feed his chickens, his livestock, and his family. Some he saved as seed for the next season. Not a single excess bushel entered the marketplace.

When the government demanded he pay a penalty, Filburn refused. His argument was elegant in its simplicity: the Constitution gives Congress the power to regulate "Commerce among the several States." But wheat that never leaves a farm isn't commerce. Wheat that's fed to chickens certainly isn't interstate commerce. The government, Filburn argued, had no constitutional authority to regulate what he did with wheat he grew for his own use.

The federal district court agreed with him. It ruled in Filburn's favor, criticizing the way the Secretary of Agriculture had campaigned for the quota system.

The government appealed to the Supreme Court.

A Court Transformed

By the time Wickard reached the Supreme Court, the institution had undergone a remarkable transformation. Eight of the nine justices had been appointed by President Franklin Roosevelt—the architect of the very New Deal programs being challenged.

This was no accident. Earlier in his presidency, Roosevelt had proposed "packing" the Court by adding new justices who would uphold his legislation. That proposal failed, but the threat may have worked anyway. In what historians call "the switch in time that saved nine," the Court began upholding New Deal programs it had previously struck down. And as older justices retired, Roosevelt filled the vacancies with judges sympathetic to an expanded federal role.

The case was also heard during wartime. The attack on Pearl Harbor had occurred just months earlier, in December 1941. The nation was mobilizing for total war. This was not a moment when courts were inclined to limit governmental power.

The Aggregation Principle

The Supreme Court's ruling was unanimous, and its logic was revolutionary.

Justice Robert Jackson, writing for the Court, acknowledged the obvious: Filburn's wheat never entered interstate commerce. In fact, it never entered any commerce at all. But that, Jackson argued, missed the point.

If Filburn hadn't grown his own wheat, what would he have done? He would have bought wheat on the open market. That market is national. Wheat grown in Kansas competes with wheat grown in Nebraska and wheat grown in Ohio. When Filburn grew his own wheat for his own use, he withdrew himself from that market. He reduced demand.

Now, one farmer's demand doesn't matter much. Filburn's extra two hundred and thirty-nine bushels were trivial compared to national wheat production.

But what about thousands of farmers? Millions of them?

This is the aggregation principle, and it changed everything. The Court ruled that Congress could regulate an activity not because of its individual effect on interstate commerce, but because of its cumulative effect when aggregated across all similar activities.

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. But 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.

The Court explicitly rejected the idea that there was a meaningful distinction between "direct" and "indirect" effects on commerce. It rejected the notion that "local" activities were beyond federal reach. If an activity, when aggregated nationally, substantially affected interstate commerce, Congress could regulate it.

Period.

What This Actually Meant

Think about the implications for a moment.

Before Wickard, there was a category of activities that were simply beyond federal reach—things that were too local, too personal, too disconnected from interstate commerce for Congress to touch. After Wickard, that category essentially disappeared.

Almost any economic activity, when aggregated across millions of people, substantially affects interstate commerce. Growing vegetables in your backyard? That reduces demand for vegetables shipped across state lines. Making your own clothes? That affects the interstate textile market. Teaching your neighbor to play piano instead of charging money? That affects the interstate market for music lessons.

Critics have noted that under Wickard, there is effectively "no distinction between 'interstate' and 'intrastate' commerce to place any limits on Congress's authority." The legal scholar Earl Maltz wrote that Wickard and other New Deal decisions gave Congress "the authority to regulate private economic activity in a manner near limitless in its purview."

The Court itself seemed aware of this. Justice Jackson's opinion acknowledged that effective restraints on congressional power "must proceed from political rather than from judicial processes." In other words: if Congress overreaches, vote them out. Don't expect the courts to stop them.

Half a Century of Deference

For the next fifty-three years, Wickard's logic held. The Supreme Court did not strike down a single federal law as exceeding Congress's Commerce Clause power.

Not one.

Congress used this authority to pass landmark legislation. The Civil Rights Act of 1964, which prohibited racial discrimination in hotels, restaurants, and other public accommodations, was upheld largely on Commerce Clause grounds. The logic was pure Wickard: discrimination in a local restaurant affects the interstate travel of Black Americans; aggregated across thousands of restaurants, the effect is substantial.

Congress regulated labor conditions, environmental practices, workplace safety, drug laws—all justified under the Commerce Clause. The power that had once been understood as limited to regulating trade between states had become a general police power, capable of reaching virtually any activity with any economic dimension.

The First Crack

The tide finally turned in 1995, more than half a century after Wickard.

The case was United States versus Lopez, and it involved a high school student who brought a handgun to school in San Antonio, Texas. He was prosecuted under a federal law—the Gun-Free School Zones Act—that made it a crime to possess a firearm near a school.

The government's Commerce Clause argument was creative. Guns near schools lead to violence. Violence affects education. Poor education affects economic productivity. Poor productivity affects interstate commerce. Therefore, Congress can ban guns near schools.

The Supreme Court, for the first time since 1937, said no.

Chief Justice William Rehnquist's opinion described Wickard as "perhaps the most far reaching example of Commerce Clause authority over intrastate commerce" and judged that it had "greatly expanded the authority of Congress beyond what is defined in the Constitution." The Court held that there must be some limit to the Commerce Clause. Possessing a gun near a school was not economic activity. The chain of causation linking it to interstate commerce was too attenuated.

If the government's logic were accepted, Rehnquist warned, there would be nothing Congress couldn't regulate. The enumerated powers in the Constitution would become meaningless.

Wickard Returns

But Wickard was not overruled. Its core logic—that Congress can regulate non-commercial activity if, when aggregated, it substantially affects interstate commerce—remained intact.

This became clear in 2005, in Gonzales versus Raich. California had legalized medical marijuana. Angel Raich grew cannabis plants in her backyard, using the marijuana to treat chronic pain. She never sold any of it. She never transported it across state lines. Her situation was remarkably similar to Filburn's wheat.

The Supreme Court upheld federal prosecution of Raich under the Controlled Substances Act. The logic was pure Wickard. Homegrown marijuana, like homegrown wheat, competes with marijuana that moves in interstate commerce. If people can grow their own, they won't buy from illegal dealers who operate across state lines. Congress had determined that the only way to effectively regulate the interstate drug market was to prohibit home production as well.

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial", in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.

Even Justice Antonin Scalia, typically a champion of limited federal power, concurred. Once you accept Wickard's aggregation principle, it's hard to draw a line that excludes homegrown marijuana but includes homegrown wheat.

The Healthcare Mandate

Wickard's most controversial modern test came in 2012, in the challenge to the Affordable Care Act—commonly known as Obamacare.

The law required most Americans to purchase health insurance or pay a penalty. Supporters argued this was constitutional under the Commerce Clause. Healthcare is one-sixth of the American economy. The uninsured drive up costs for everyone else. When aggregated, the decision not to purchase insurance substantially affects interstate commerce.

Critics countered that this was a bridge too far. Wickard involved regulating an activity—growing wheat. The healthcare mandate regulated inactivity—the decision not to buy something. If Congress could compel people to enter a market, could it also mandate that everyone buy broccoli? Exercise three times a week? Purchase an American-made car?

Chief Justice John Roberts, in a fractured decision, agreed that the Commerce Clause didn't authorize the mandate. The power to regulate commerce presupposes that there is commerce to regulate. You can't regulate someone into commerce.

But Roberts upheld the mandate anyway—as a tax. The penalty for not purchasing insurance functioned like a tax, and Congress's taxing power is broad. The Affordable Care Act survived, though the Commerce Clause rationale did not.

What Filburn Understood

Roscoe Filburn was not trying to destabilize the wheat market. He was trying to feed his chickens.

But his case became a vehicle for one of the most fundamental questions in American constitutional law: what limits, if any, does the Constitution place on federal power? The founders created a government of enumerated powers—Congress can only do what the Constitution specifically authorizes. The Commerce Clause was one source of authority, but it was supposed to be limited to regulating trade between states.

Wickard transformed that understanding. The commerce power became, for practical purposes, a general power to regulate the economy. The distinction between interstate and intrastate commerce—which the Constitution explicitly draws—became legally meaningless.

Whether this was good policy is debatable. The federal programs upheld under Wickard's logic have done enormous good: stabilizing markets, protecting civil rights, ensuring workplace safety, cleaning up the environment. But they have also expanded federal reach into areas the founders likely never imagined—and never authorized.

The Deeper Question

Wickard forces us to confront an uncomfortable truth about constitutional interpretation.

The Constitution doesn't interpret itself. Someone has to decide what "Commerce among the several States" means. Someone has to decide whether home-consumed wheat counts. And whoever decides will inevitably bring their own values, their own assumptions about the proper role of government, to that decision.

The justices who decided Wickard believed that the federal government needed broad power to address national economic problems. They had watched the Great Depression nearly destroy the country. They had seen state-by-state regulation fail. They were not inclined to strike down programs designed to help farmers survive.

The justices who decided Lopez, half a century later, worried that unlimited federal power threatened individual liberty and state autonomy. They wanted to restore some meaningful limit on what Congress could do.

Both positions are defensible. Neither is obviously compelled by the constitutional text. And that's the uncomfortable reality of constitutional law: it is, at bottom, a debate about values dressed up as a debate about interpretation.

Eighty Years Later

Roscoe Filburn lost his case and presumably paid his penalty. He died in 1987, having lived long enough to see his case become a fixture of constitutional law courses and a perpetual source of controversy.

Today, Wickard remains good law. Its aggregation principle has survived every challenge. Congress continues to rely on it to regulate activities that would have seemed purely local to earlier generations.

But the debate Wickard sparked is far from over. Every time Congress passes a new regulation, someone asks: is this really interstate commerce? Every time the Supreme Court considers a Commerce Clause case, lawyers cite Wickard—sometimes to defend federal power, sometimes to argue that it should finally be limited.

A farmer growing wheat for his chickens. That's where it started. And eighty years later, we're still arguing about what it means.