As willing as our contemporary Supreme Court may seem at times to stretch the Constitution to achieve an end, from a purely American point of view, the Stone Court's decision in the sixty-seven-year-old Wickard case has to be one of the scariest on record. It also makes plain the underlying philosophies of Roosevelt's "New Deal" administration, and the willingness of the Court in general to sway to the prevalent beat of the drum.

Further, it reinforces the argument for a clearer definition of Congress' power over interstate commerce, contained in Article I, Section 8 of the Constitution.

Part of the New Deal's plethora of programs handing government control over the free market was the Second Agricultural Adjustment Act of 1938. The Act empowered the federal government to set quotas and prices for agricultural products moving in interstate commerce, presumably to help farmers suffering from both the Depression and the dust bowl weather cycle of the mid-thirties, as well as to insulate consumers from price gouging.

Filburn was just such a farmer. He maintained a small dairy herd and some chickens on his Ohio farm, and sold milk, poultry and eggs on the open market. He also planted feed for his livestock, including a small patch of wheat to feed the chickens, and grind into flour for his own use. None of the wheat left his farm.

Unfortunately he made the mistake of planting 12 acres more than the federal quota allowed in 1941. From this added acreage, he realized a harvest of 239 bushels, consumed it all on-farm, and was penalized 49¢ per bushel by the government -- a "tax" rate of about 57% of that year's average market price. Incensed, Filburn sued on the basis that the Commerce clause did not empower Congress to regulate crops that never left the farm, let alone enter interstate commerce.

Unfortunately, by 1942 when his case wound its way to the U.S. Supreme Court, all but one justice had been appointed by President Roosevelt, and the Court was clearly in his corner philosophically. Their unanimous decision in this case reflected New Deal logic.

Writing for the Court, Justice Robert Jackson (later chief prosecutor at the Nuremberg War Crimes Tribunal) reasoned that Filburn's additional production had dissuaded him from purchasing the wheat he needed on the open market. Though his 239 bushels were minor, Jackson noted, fully twenty percent of U.S. wheat never left the farm, the combined effect depressing demand and adversely affecting interstate commerce. As such, the federal government had a right to regulate such farmers under the Commerce clause.

The evolution of the Court's thinking on Commerce cases demonstrates not only the wide room for interpretation in the constitutional usage, but also the growing willingness of the Courts through the years to lend support to congressional efforts using this clause as a catch-all for government intervention. The Court itself uses the two key clauses of the Fourteenth Amendment in much the same way.

Several more recent cases can be cited -- Heart of Atlanta Motel (1964) comes to mind -- that illustrate the continued use of the Commerce clause to regulate private affairs which are "interstate" only in the most nebulously construed way. But Wickard still stands out to this writer as the scariest example.