The Strange Case of Farmer Filburn

Let’s begin 80 years ago this month, in 1941, on a modest farm located near Dayton, Ohio. The owner, Roscoe Filburn, looked out over 23 acres of fertile black soil planted in wheat. The weather was good that spring, and crops were growing well.

Later, in May, the Secretary of Agriculture went on nationwide radio and urged farmers everywhere to tend their fields and harvest as much as possible, considering the war raging in Europe.

Dutifully, in July, Farmer Filburn brought in 462 bushels of wheat. He fed almost all of it to his cattle, right there on the farm.

And then those bushels changed America — if not the world.

I’ll explain more in a moment. But for now, just understand that on occasion, we have rare moments and events around which history truly pivots.

With the strange case of Farmer Filburn — with the wheat that he fed to his cattle — we have such a case right here.

Over a relatively few months in 1941-42, and due in no small measure to Filburn, America made a modern transformation from the Republic of 1787 into a nation state with an economy all but commanded from the top down.

And that is very much why the world is the way it is today.

Let’s look back and dig in…

First, a few words about Mr. Filburn. He was by all accounts a humble, Ohio family farmer, descended from several generations of family farmers. Per family lore, Filburn was a proud fellow who valued his independence. He was quoted to say, “I never worked for another man in my life.”

Filburn lived in a modest house next to his fields. He raised cattle, chickens and field crops, including the above-noted wheat.

Roscoe Filburn

Family farmer Roscoe Filburn. Photo via New York Times.1

Sometimes Filburn sold his wheat in local markets. Other times he just fed the wheat to his cattle. He did what he thought was in his best interests.

These days, Filburn’s family farming kind are almost an extinct species in America. But in 1941, Filburn himself was not uncharacteristic of the people who dwelt all across the plains of the vast Republic.

But soon after harvesting his wheat in July, Filburn received a notice from a federal conservation committee.

Apparently, his yield exceeded his acreage allotment under the Agricultural Adjustment Act of 1938. That is, per the U.S. Department of Agriculture, Filburn’s production allowance was 223 bushels. And he had produced 239 bushels too many.

The conservation committee fined Filburn the sum of 49-cents for each excess bushel, a total of $117.11 (about $5,000 today). To add insult to injury, the committee placed a federal lien on his crops!

Outraged, Filburn took the matter to court. And within just over a year, the traditional American concept of federalism was dead.

The original lawsuit was captioned Filburn v. Helke, 43 F. Supp. 1017 (1942), out of the Federal District Court for Southern Ohio.

Quickly, Filburn’s case went to trial. (Because things happened much faster back then, evidently.)

And on March 14, 1942 — a mere eight months after the original wheat harvest — a district court judge issued a terse three-page opinion in his favor. That is, Filburn won the case.

The trial judge followed the facts and focused on equity, an old concept of English law. The decision described how Filburn harvested his “extra” wheat following specific guidance from the Secretary of Agriculture, per that radio broadcast in May.

The court noted that Filburn did exactly what a federal cabinet officer had asked of him; he produced food. At worst, stated the court, Filburn was “unintentionally misled.”

The district court also noted that federal controls on Filburn’s wheat amounted to a taking of property without compensation, contra the protections of the 5th Amendment.

Finally, the decision included an injunction, on constitutional grounds, against the U.S. government enforcing Agricultural Adjustment Act. And although this matter occurred before the days of the Manhattan Project, it’s fair to say that the injunction caused the case to go nuclear.

Procedurally, the court’s injunction entitled the government to skip the circuit courts and take an immediate appeal to the U.S. Supreme Court under a claim of “manifest error” by the district court.

And what followed was absolutely stunning.

From the farms and fields of southern Ohio, the pace of the case was rocket-like.

In Washington, D.C., the U.S. Supreme Court heard oral argument in Filburn on May 4, 1942, less than two months after the federal district court trial decision. That’s all but unheard of, to move a case along the dockets so rapidly.

In the first go-round, the government conceded a key point, rooted in history from the earliest days of the Republic, and in fact long before. That is, since Colonial times, farmers raised food crops, such as wheat, for personal and local consumption, including to feed livestock.

On these facts alone, it was crystal clear that across the arc of U.S. history, and as laid down in long-settled law, Filburn’s wheat output was a personal decision about how to use one’s own property.

Traditionally in America, farmers farmed. They grew food. The amount of Filbert’s wheat output was not subject to any historical semblance of federal control, let alone to a hefty government fine for alleged over-production.

And based on the initial arguments in the Supreme Court in May 1942, it was more than apparent that Filburn should prevail against the government’s appeal.

But then on June 1, in a highly unusual move the Supreme Court announced that it would review the Filburn case again.

The Court instructed both sides to brief and argue the issue of whether Filburn’s wheat crop fell into the generally accepted realm of federal regulation of interstate commerce.

And at this point, you might be thinking, “uh-oh…”

Because yes, the justices were up to something.

Indeed, by 1942 President Franklin Roosevelt had appointed eight new justices to the Court, and they had an agenda. The Court was more than deferential to Roosevelt’s “New Deal” style of governance, with active control of the economy by federal bureaucrats.

In essence, the justices were not so much deciding Filbert’s case on the farming merits, as they were taking Filbert’s facts and using them to weave a certain kind of new law.

Stated another way, the Court was legislating from the bench.

And really to understand what was happening we have to go back a few years into the late 1930s.

Over the course of the Great Depression, the Supreme Court revised large segments of American jurisprudence, particularly under what’s called “Commerce Clause” analysis. Virtually always, the Court used the lever of interstate commerce to expand federal authority to regulate the U.S. economy.

In 1937, for example, the Supreme Court upheld the National Labor Relations Act in the case of NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

Jones & Laughlin focused on what legal scholars call the “stream of commerce,” meaning how goods and services move within the economy. In particular, Jones & Laughlin blurred former traditional distinctions, rooted in history as well as case law, between manufacturing and agriculture.

After Jones & Laughlin, the new test for federal commerce, subject to regulation, was no longer any specific or particular activity, but instead became that activity’s “effect upon interstate commerce.”

You could call it monetary analysis or thinking like a banker. A dollar spent one place impacts spending in another place, and so on.

A few years later, the Supreme Court refined its reasoning in a case named United States v. Darby Lumber Co., 312 U.S. 100 (1941). The Court upheld Congress’s constitutional power to regulate labor standards under interstate commerce, despite any exercise of state power.

Basically, in Darby Lumber the Supreme Court determined that the federal Fair Labor Standards Act was a legitimate effort by Congress to prevent states from condoning poor labor practices; poor as compared with notional federal standards.

In essence, the legal thinking within the Supreme Court was that national-scale problems, such as the U.S. experienced during the Great Depression, justified national-scale solutions.

With Darby Lumber the Court held that Congress could prevent states (in this case, Georgia) from setting low labor standards to, in effect, improve their economic advantage over other states.

Now, after Darby Lumber, the justices were looking for a way to take the next steps. And lo and behold, Farmer Filburn came to town.

In a case over a trifling $117.11, the Supreme Court saw an opportunity to take its Commerce Clause jurisprudence another step; namely, to extend federal power down to the level of the individual.

Mr. Filburn was no union-busting steel corporation or lumber company. He was just a simple man from a small farm. But he grew wheat, and there was a national-scale, federal interest in food.

To the Supreme Court, it did not matter that Filburn’s wheat was not for sale or that he fed it to his cows. The Court was out to extend federal power even to goods not for sale.

That is, the justices were out to give the federal government power over even personal decisions, and thus did the Supreme Court take another bite at Filburn, ordering the second round of arguments.

By refocusing on the specific issue of interstate commerce, the Court effectively shaped the Filburn lawsuit to support a specific doctrinal goal. The Court minimized any issues of equity affecting Filbert, which formed the basis for the Ohio district court decision.

Or to put it another way, so much for the facts of the case.

And now it was time for the Court to be inequitable, so to speak. The new Filburn focus of the Court was on pure, crystallized Commerce Clause jurisprudence, a legal keystone of Roosevelt’s “New Deal.”

As the calendar ticked down, the justices were ready to roll, drop the gavel and make some new law.

After the Supreme Court’s summer recess, the parties reargued the Filburn case on Oct. 13, 1942, right out of the gate at the beginning of the new term.

Less than four weeks later, on Nov. 9, 1942, the Supreme Court delivered a unanimous decision (9-0) in favor of the U.S. government.

The Filburn decision extended federal power over so-called “interstate commerce” down to the grains of wheat in a bushel basket, even if that wheat was grown by a small family farmer to feed the cows.

So much for the previous 300 years of American farming, formerly free from government control.

And so much for classical federalism, which was buried good and deep by the case, now captioned Wickard v. Filburn, 317 U.S. 111 (1942). (Note: The caption refers to Claude Wickard, Roosevelt’s Secretary of Agriculture at the time the case was argued.)

Ask any law student about Wickard v. Filburn. Or ask any lawyer who hasn’t forgotten too much of what they teach in law school. It’s all but iconic.

The case stands for the power of the federal government, pursuant to the Interstate Commerce Clause, to regulate economic activity in America down to the actions of each, any and every individual. Yes, this means you…

That is, if someone engages in anything that can even remotely be labeled “interstate commerce,” then the government can regulate it.

In that sense, Wickard v. Filburn is foundational to what’s known as “Commerce Clause jurisprudence” in the modern era. It is the legalistic bedrock upon which is built much of modern federal governance and economic regulation.

Over the decades, the Supreme Court has used Wickard v. Filburn to justify everything from integrating lunch counters in the old Jim Crow South to forcing people to buy Obamacare insurance coverage.

Find any plenary power of the federal government by which it intrudes into your life, let alone how it controls any and every aspect of the economy. And somewhere in the legal reasoning will be a citation, however remote, to Wickard v. Filburn.

Don’t blame poor Filburn though. In 1941-42 he was simply fighting for his freedom and asserting his rights to be left alone, to live his life and conduct his affairs.

But those particular justices back then (and that particular Supreme Court that Roosevelt shaped with his appointees) took Filburn’s facts and crafted new law that gave unprecedented, plenary powers to the government in faraway Washington.

Wickard v. Filburn essentially killed classical federalism, erasing the last legal vestiges of people just wanting to be left alone.

In the intervening years the power of our federal government has done nothing but grow, grow and grow some more. It’s now at the point where we’re all subject to rule by a distant, aloof group of mostly bureaucratic federal functionaries. (Dr. Fauci comes to mind.)

Meanwhile, we’re a long way from the Republic of 1787. But still, it’s worth recalling how we arrived here. And it’s worth recalling the strange case of Farmer Filburn, which greased those skids.

On that note, I rest my case.

That’s all for now… Thank you for subscribing and reading.

Best wishes,

Byron King

Byron King
Managing Editor, Whiskey & Gunpowder

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1 At Heart of Health Law Clash, a 1942 Case of a Farmer’s Wheat, New York Times

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