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Filburn's Wheat and Federal Misuse of the Commerce Clause

Published in Blog on September 10, 2023 by Kelly Oldford

Convention of States Action is a two-part grassroots movement. There is a national level and a state level. The national team is working to bring all the states together for a first-ever national Article V convention of the states. This national convention will be accomplished within each state, at the state level. There are state teams all across the country, including Michigan, working with the electorate and state and local leaders to pass resolutions.

These resolutions, which are a binding memorandum, serve as the state’s application for the Article V convention. Each state is working to pass the same resolution, thereby applying for the same convention! We are more than halfway to our goal! There are 19 states that have passed their resolutions. We need a minimum of 34. 

Whew!

Why would so many people do so much work? Why would there be so many volunteers working countless hours each week across the country?

It’s simple - we believe an Article V convention is the only peaceful, legally-binding method to put Washington D.C. back into its box. The politicians aren’t going to do it themselves. And there is now a generational swamp, consisting of hundreds of nameless bureaucrats, controlling almost every aspect of our existence. 

One of the preeminent examples of this is the Supreme Court case of Wickard v. Filburn. It is one of the first notable cases the greatly expanded government regularity authority. 

Wickard was decided in 1942. At this time, the federal government, under the Department of Agriculture, had been attempting to control the wheat supply because they argued it would stabilize prices. They regulated how much wheat and hay a farmer could produce on their property. A farmer in Dayton, Ohio, Roscoe Filburn, grew more than his allotted amount. He argued the “extra” wheat and hay he was producing was simply to be used on his farm, to feed his animals. 

However, he was fined by the government for violating the Agricultural Adjustment Act of 1938. He, in turn, sued the government. By arguing that the excess wheat and hay was to be used on his farm, it was never intended to be part of “commerce”. He was simply using it for his own purposes, much less interstate commerce. The federal government had no authority to regulate and fine him for that excess because the Commerce Clause only allows for the regulation of interstate commerce. 

The Supreme Court ultimately ruled against Filburn. They stated Filburn was actually operating as part of “commerce” because if he hadn’t produced his own excess wheat, he would have bought it on the open market. They acknowledged there would not be much of an impact on commerce because of one farmer, but if thousands of farmers were allowed to work this way, there would be a “substantial impact” on commerce.

The Court created a new standard by which to judge the government’s reach into commerce: whether the acts of private individuals or businesses would have a “substantial impact” on commerce. If it was deemed there would be a substantial impact, the government was now going to be allowed to regulate it. 

It wouldn’t be until six decades later, in 1995, before the Supreme Court would strike down any regulation coming from the federal government on the basis of the Commerce Clause. The impacts of Filburn are clear: it is expansive, ever-reaching, and blatantly deferential to government regulation of any part of our American economy.

The economy is everything. It runs the stock market. It determines supply and demand. It moves parts of the complex supply chain web all over America, and the world. It builds our houses. It builds our cars. It provides for and moves energy all over the country.

It reminds me of Milton Friedman’s famous dialogue on building a pencil. A centralized federal government operating out of Washington D.C. cannot successfully regulate or manage all pieces of “commerce.” But it will certainly try.  

And it is this “trying” that has become a major reason for needing a convention of the states. Article V is the only way to bring our government back into its Constitutional authority. It clearly won’t do it on its own! 

Therefore, we need you! We need you on our Michigan team! We need you on our state teams all across the country. You can take a few easy steps right now. First, sign the petition and make a difference instantly. Second, get more information on and volunteer for one of our many available positions: https://conventionofstates.com/take_action

Want to learn more? Watch the summary of Filburn here: https://fb.watch/mZQ4x8yPga/

Read the Filburn case for yourself! https://constitutioncenter.org/the-constitution/supreme-court-case-library/wickard-v-filburn

Meet you on the field! 

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