NPR this morning had a story about an Ohio farmer, his chickens and the Commerce Clause to the U.S. Constitution. Why is this important to those concerned about corporate rule and democracy? Because the Commerce Clause (Article 1, Section 8) has been labeled by some as the “Baby NAFTA” or “Granddaddy WTO” – depending on your generational preference.
What does this mean?
The Commerce Clause was rammed into the Constitution by large commercial interests to preempt localities and states in the making of rules regarding trade. Remember, what we know of today as the U.S. Constitution was actually our second national constitution. The first, the Articles of Confederation, placed all real power in the laps of states. Major business interests didn’t like this at all. They preferred federal control of trade – one set of rules that would overrule the laws of states – no matter how democratically enacted they may be. The Commerce Clause, thus, has been used as a battering ram by corporations to create laws favorable to their interest.
So here’s the full story of the Ohio farmer and his struggle to maintain local control over corporate control.
Farmer Filburn’s Chickens and Pecking at Democracy
Back in 1938, as the country was struggling its way out of the Great Depression, Congress passed the Agricultural Adjustment Act. Part of the idea was to limit production to keep prices up, so if a farmer grew extra acres of a crop, a penalty was incurred.
Well, Farmer Filburn of Ohio grew his allotted eleven acres of wheat for sale on the market. But he also grew a few extra acres for himself and his family, just to feed his chickens and bake some bread. However, Mr. Wickard, the U.S. Secretary of Agriculture, didn’t like this one bit, and charged Farmer Filburn $117.11 for exceeding his quota. Farmers were outraged by this federal intrusion on state, local and private rights, and joined with Mr. Filburn to fight the case all the way to the Supreme Court.
Local rights are very important for protecting communities from a variety of harms. For example, large businesses such as Walmart can decimate local economies, and distant corporations can poison air and water with an operation such as a quarry or factory farm with relative impunity. Over the past two hundred years states and municipalities have passed countless measures to meet their obligation to protect the health and welfare of their citizens.
But state and local laws can be very annoying and expensive for large, non-local businesses. In the perennial battle for the supremacy of big business and the federal government, we the people often lose, frequently at the hands of our unelected Supreme Court which is composed mostly of wealthy white men (and lawyers to boot). Over the years these Gentlemen, with a few striking exceptions, have generally proved themselves unable to sympathize with and support normal people going about their lives, earning a living, raising children, and just plain being people.
A prime tool for imposing this federal power has been the Commerce Clause, Article I Section 8 of our Constitution. It states that Congress makes the rules about interstate commerce — which the Supreme Court, exercising its questionable authority of judicial review, rewrites at will.
And that’s what the Judges, in their curious wisdom, did with Farmer Filburn, as they usurped local authority and ordered him to pony up his $117.11. In so doing the Court demonstrated, as it had so many times in the past, that it favored special interests by inventing a decision and then — well, pecking around — for the rationale to support it.
So here’s what the Supremes said: by not shipping via interstate transport, by not using interstate storage silos, by not giving his chickens interstate wheat for dinner, Farmer Filburn deprived the interstate commerce stream of his business. Therefore, by not engaging in interstate commerce, Farmer Filburn was engaging in interstate commerce (and 1984 hadn’t even been written yet)!
There are many examples throughout our history of the Supreme Court, Appointed for life and answerable to no one, overriding the will of millions of people as expressed through our elected representatives.
Many thanks to Jane Anne Morris and POCLAD for the story of Farmer Filburn, from Jane Anne’s forthcoming book on the Commerce Clause, Gaveling Down the Rabble.