On Personal and Economic Liberty: Apple seeds


Alexandria, VA – August 31, 2015

The other day, little man (my five-year-old) excitedly told me that he wanted to preserve the seeds from the apple he was eating.

“We can plant these seeds,” he said excitedly, “and grow apple trees; then we won’t have to go to the store to get apples! We can just pick them from the three. Do we have a long ladder, like the one the firemen use?”

Notwithstanding the fact that we would have to wait about ten years to actually obtain any apples after planting the seeds, I didn’t have the heart to tell him that the Supreme Court has found this activity to be problematic. Yes, growing produce on your own private property has come under scrutiny.

Indeed, in my opinion, Wickard v. Filburn (1942) represents one of the extreme examples of the power of the federal government being upheld by the Supreme Court. Filburn was a dairy farmer who was growing extra crops on his own land for his family’s own consumption, not for sale. Sounds like his own business, right? I would think so. Except that during the Great Depression, Congress enacted the Agricultural Adjustment Act (AAA), which restricted agricultural production by paying farmers to reduce crop area. The AAA was enforced against Filburn, the government arguing that he exceeded the law’s market quota. Filburn sued the government, arguing that the law violated the Commerce Clause (Art. I, Section 8, Clause 3 of the U.S. Constitution).

Under the Commerce Clause, the federal government regulates interstate commerce. But here Filburn was growing crops on his own land for his family to eat. How can that be interstate commerce? The Supreme Court found that the law was constitutional under the Commerce Clause because the federal government has an interest in limiting the supply of crops (here, wheat specifically) to keep the price high (thereby, helping farmers after the Depression). If Filburn grows and uses his own wheat, then he won’t have to buy wheat, there will be less market demand for wheat, and the price will decline.

But Filburn is just one farmer. How could the activities of one farmer affect the price of wheat? The Court found that in the aggregate, although Filburn’s act by itself doesn’t affect interstate commerce, if many farmers did the same, and if you aggregated their actions, that would affect interstate commerce by affecting the price of wheat. So even if the activity is non-economic, as here because Filburn grew crops for his own use (not for sale), the aggregation principle can be used to bring the activity under government scrutiny. Fantastic.

To me, this is complete overreach by a Court who was no doubt pressured by the executive branch and the economic desperation of the times. Ladies and gentleman, this is still good law. That is, it is still considered constitutional for the government to dictate what crops you cannot grow on your own private land. Indeed, if the federal government can regulate what you do on your own land under the Commerce Clause, is there anything it can NOT regulate?

The Supreme Court continued this rationale in Gonzales v. Raich. In Gonzales, California residents challenged that the federal Controlled Substances Act was unconstitutional under the Commerce Clause. Here, Raich grew and used (legally, under California law) her own marijuana. The federal law criminalizes this private behavior; there was no indication that Raich was going to sell what she grew.

The Court relied on Wickard, finding that even though Raich apparently didn’t plan to sell drugs, that fact that she grew drugs on her own private property affected the legal and illegal markets. Here, the Court again applied the aggregation principle used in Wickard. Even if you are not in favor of legalizing marijuana, in my view the Raich decision broadens the government’s authority as compared to the Wickard decision. In Wickard, the farmer grew crops to sell on the market, for his livelihood, in addition to growing them for his own personal use. In Raich, the evidence suggested that she only grew marijuana for her own personal use, not for sale. The bottom line is that these cases appear to expand the types of laws that the Court would find constitutional under the Commerce Clause, and the types of activity that the government can regulate.

At least one Justice in Raich had some sense. Justice O’Connor dissented, arguing that the majority’s definition of economic activity was so broad as to cover all human activity and to bring it under federal regulatory reach. O’Connor argued that what Raich was doing on her own property was so minimal, it was difficult to see how her actions affected interstate commerce, such that they warranted regulation.

The Court dialed back a bit, though not much, in US v. Lopez. Here, the issue was whether a federal law regulating (prohibiting) possession of a firearm in a school zone was constitutional under the Commerce Clause (of course, such a prohibition may be permitted under other laws). Again, we’re talking about private possession of something as in  Wickard. The Court found the law unconstitutional (as it pertained to the Commerce Clause) because it did not deal with economic activity. That is, the law here made no effort to regulate sales of firearms via interstate commerce. The majority held that if Congress can get away with this “link” to interstate commerce, then it was almost impossible to think of a law that would NOT affect interstate commerce. Ya think?

I hate to have to tell you to be careful what you do on your own land, but these laws are still valid. There will be more on economic liberty-related cases in upcoming posts.


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