Thomas wrote: joefromchicago wrote:
Meanwhile, I eagerly await Thomas's renewed assault against Wickard v. Filburn.
So far, I don't appear to be having much opposition, and it isn't my style to preach to the converted. Maybe Debra will visit to agree with the ruling, but I'm pessimistic.
The problem, as I see it, is not with Wickard
, it's with the commerce clause. "Commerce" is a rather elastic concept. If it simply means "trade," then I would agree that Wickard
should have been decided differently. But then the constitution doesn't say "interstate trade," it says "interstate commerce." And "commerce," I would argue, has a broader meaning than merely "trade."
I think the supreme court in Wickard
was correct in noting that purely local "commerce" can have interstate effects, and that congress's ability to regulate interstate commerce would be severely compromised if it could not reach such local activities. Roscoe Filburn argued that the extra 239 bushels of wheat that he produced on his farm went to feeding his family and his livestock, and thus would never have entered the market anyway. What he failed to note, however, was that those 239 bushels of wheat represented 239 bushels that he did not
purchase in the market; multiplied many times over, the depressive effect on the interstate
commerce in wheat would have been just as severe as if the wheat had been sold on the open market.
Imagine if the court had ruled otherwise in Wickard
. Congress exercises its power to regulate interstate commerce in wheat, but it has no power to regulate local activities like Roscoe Filburn's production of wheat in excess of his quota as long as the excess is used intrastate. Since wheat is fungible, and the wheat under the quota is indistinguishable from the wheat exceeding the quota, all the other Filburns in the state would do likewise. The market would then be flooded with wheat in excess of the combined state quota, since every farmer would sell quota wheat and consume excess wheat, rather than being both a seller and consumer of quota wheat. In other words, farmers would no longer compete with other wheat purchasers in the market; the resulting decline in demand would depress prices, which would, in turn, undermine the national quota system.
Now, for the diehard libertarian, this is an excellent result. I don't plan to argue in favor of price controls or quotas on commodities, but I do think that the result that I've outlined above is inconsistent with the notion of a single, uniform interstate market envisioned by the authors of the constitution. As such, congress must have some ability to regulate local commercial activities that have a significant impact on interstate commerce; otherwise, its power is, in large part, purely illusory.
The surprising thing about Raich
, as one commentator has noted
, is not that the supreme court upheld Wickard
, it's that Rehnquist and O'Connor, who have supported Wickard
in the past, now believe that congress has less authority to regulate marijuana than it has to regulate wheat.