Tuesday, September 23, 2008

Chen on Wickard v. Filburn

Jim Chen, Dean of the University of Louisville Brandeis School of Law, has posted his essay, The Story of Wickard V. Filburn: Agriculture, Aggregation, and Commerce, which appeares in CONSTITUTIONAL LAW STORIES, Michael C. Dorf, ed., 2d ed., Foundation Press (2008)( the 1st. ed. is here). There is much to agree with in this essay, which is a helpful explication of the confusing agricultural policy issues affecting this important case. Chen leaves just one thing out, and it is a very important thing: the impact of World War II on the Court's Commerce Power jurisprudence. This matter surfaced even in the facts of Wickard: Farmer Filburn was confused by a speech given by the Secretary of Agriculture Wickard. The title of the address? "Wheat Farmers and the Battle for Democracy." The importance to the war and national security of American farmers and of federal control over many aspects of the economy including agriculture, was an important issue well known to a Court that had geared up for the war, even if Justice Jackson didn't address it in his opinion.

Here's Chen's abstract:

This article tells the story of Wickard v. Filburn, 317 U.S. 111 (1942). After providing a survey of American agriculture and its regulation between the World Wars, this article describes the constitutional landmark that began as a controversy over Roscoe Filburn's 1941 wheat crop. Wickard v. Filburn represents a pivotal moment in the Supreme Court's effort to define Congress's power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Greater turmoil over commerce clause jurisprudence has breathed new life into Wickard v. Filburn.
Image credit.


Jim Chen said...

Thanks for this post, Mary. You rightfully stress -- as you invariably do -- the influence of wartime considerations and global geopolitics on the Supreme Court.

Jim Chen said...

And I hasten to add this: As a substantive matter, it's hard to see how the Agricultural Adjustment Act's supply control provisions advanced the sentiment underlying the slogan, "Food will win the war." The whole point of the acreage limitations that farmer Filburn challenged was to suppress production, not to spur it.

Mary L. Dudziak said...

Jim, re: your second point: you're right, of course, that there is a puzzle here. The AAA limited Filburn's production, but the rhetoric of the time was all about the need to produce and conserve wheat to help England fight the Nazis. (And this occurs before Pearl Harbor.) It's been a while since I've looked at this in detail (I have been meaning for some time to write a Wickard article, but other projects keep getting in the way...). But I think the issue was the need for federal control over key commodities to ensure steady production rather than fluctuation. If farmers knew they'd have a predictable price, they'd keep planting.

Let's do a Wickard/Commerce Power panel sometime and figure this all out!

Jim Chen said...

You've got a deal, Mary! Let's find a good time and place to do this.