Study Guide

Wickard v. Filburn

Wickard v. Filburn eText - Primary Source

Primary Source

Supreme Court Justice Robert H. Jackson, 1941. © BETTMANN/CORBIS. REPRODUCED BY PERMISSION.Supreme Court Justice Robert H. Jackson, 1941. © BETTMANN/CORBIS. REPRODUCED BY PERMISSION. Published by Gale Cengage © BETTMANN/CORBIS. REPRODUCED BY PERMISSION.

Supreme Court decision

By: Robert Jackson

Date: November 9, 1942

Source: Wickard v. Filburn, 317 U.S. 111 (1942). Reprinted in Kutler, Stanley, ed. The Supreme Court and the Constitution: Readings in American Constitutional History, 3d ed. New York: W.W. Norton, 1984, 406–412.

About the Author: Robert Jackson (1892–1954) was appointed to the Supreme Court in 1941. Like several Supreme Court justices in the twentieth century, Jackson came to the bench after being attorney general. He was a strong supporter of First Amendment rights and his term was distinguished by a long-standing feud with fellow justice Hugo Black. While Black often wanted the Court to take a stronger role in curbing government infringement on civil liberties, Jackson resisted this in favor of judicial restraint.


Wickard v. Filburn affected two very different aspects of American congressional power. First, it defined what the commerce clause of the U.S. Constitution meant when it stated that Congress had the power "to regulate [c]ommerce with foreign Nations, and among the several States, and with the Indian Tribes." Second, it redefined interstate commerce. The interstate portion of this clause had served as the basis for much federal power but questions remained about how far this power reached into the states. Questions also remained about the extent to which the commerce clause could regulate all aspects of production, even those far removed from commerce.

In addition, questions remained about Congress's power to regulate agriculture. While Congress had not been granted specific control over agriculture, many in the nineteenth century, especially those from farming states, agreed that the general welfare clause ("We the people… in order to… promote the General Welfare… do ordain and establish this Constitution…") allowed Congress to regulate agriculture. Others disagreed and the Supreme Court, in United States v. Butler (1936), stated the general welfare clause did not allow agriculture regulation. The first Agricultural Adjustment Act (1933) was struck down in Butler but the New Deal passed a Second Agricultural Adjustment Act in 1938. The Supreme Court upheld this second act, but mostly as it affected interstate commerce. The Wickard case tested the act as it affected grains used purely on the farm as food for livestock, household food, and seed, all areas far removed from any direct effect on interstate commerce. Upholding the act in this area would completely redefine interstate commerce as well as greatly expand the power of Congress in the area of both the commerce clause and the general welfare clause.


The Supreme Court determined that Wickard's use of his own production above the quota for his household did affect interstate commerce. The Court stated that if he had not used his own grain he would have bought grain that might have been from another state. This meant that even if his grain did not appear on an interstate market his production above the quota still affected interstate commerce. The Supreme Court here destroyed the nearly fifty-year-old distinction between production and commerce, which meant that Congress could regulate both of these activities. The only requirement now was that the item regulated must have "a substantial economic effect on interstate commerce." The decision also recalled and put into law Chief Justice John Marshall's early nineteenth-century comment that "restraints on its [the commerce clause's] exercise must proceed from political rather than judicial processes." With this expansion of the commerce clause few areas were immune from potential regulation. This expansion greatly increased the government's ability to control the economy.

Congress went on to use the commerce clause to accomplish its goals in other areas. For instance many civil rights regulations are based on the commerce clause. Discrimination in certain areas may be prohibited if the activity has an effect upon interstate commerce. In addition, by expanding the idea of the general welfare clause to include agriculture, the Wickard decision greatly expanded the government's power and gave a judicial stamp of approval to the system of price supports, quotas, and production controls that continues to exist. Thus Wickard v. Filburn helped set the stage for powers that the government has held into the twenty-first century, both in agriculture and in the larger world. In addition Wickard symbolized the completion of the constitutional revolution of the 1930s, as it directly repudiated the idea of limited government symbolized by United States v. Butler.

Primary Source: Wickard v. Filburn [excerpt]

SYNOPSIS: Justice Jackson rules that the power of Congress to control agricultural commerce is to be decided by the effect of a product on the economy. He notes that wheat production generally exceeds consumption in the states. Therefore private consumption, in which a farmer uses his own excess grain for use on his farm rather than buying it from another farmer, does affect market demand for the product. Thus the court rules the regulations legal, allowing farmers to be penalized for selling or using grain they produce above the quota. The case was decided on November 9, 1942.

Justice Jackson delivered the opinion of the Court.

It is urged that under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby… sustaining the federal power to regulate production of goods for commerce, except for the fact that this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes a definition of "market" and its derivatives, so that as related to wheat, in addition to its conventional meaning, it also means to dispose of "by feeding (in any form) to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of." Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises. Wheat produced on excess acreage is designated as "available for marketing" as so defined, and the penalty is imposed thereon. Penalties do not depend upon whether any part of the wheat, either within or without the quota, is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for sale or for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty, or except it is stored as required by the Act or delivered to the Secretary of Agriculture.

Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most "indirect." In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a "necessary and proper" implementation of the power of Congress over interstate commerce.

The Government's concern lest the Act be held to be a regulation of production or consumption, rather than of marketing, is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as "production," "manufacturing," and "mining" are strictly "local" and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only "indirect." Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as "production" and "indirect" and foreclose consideration of the actual effects of the activity in question upon interstate commerce.

At the beginning Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded.… He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.…

For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause, and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as "production," "manufacturing," and "mining" were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.

It was not until 1887, with the enactment of the Interstate Commerce Act, that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder.

When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and allowed but little scope to the power of Congress. These earlier pronouncements also played an important part in several of the five cases in which this Court later held that Acts of Congress under the Commerce Clause were in excess of its power.

Even while important opinions in this line of restrictive authority were being written, however, other cases called forth broader interpretations of the Commerce Clause destined to supersede the earlier ones, and to bring about a return to the principles first enunciated by Chief Justice Marshall.…

Not long after the decision of United States v. Knight Co.,… Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that "commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business." It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. In some cases sustaining the exercise of federal power over intrastate matters the term "direct" was used for the purpose of stating, rather than of reaching, a result; in others it was treated as synonymous with "substantial" or "material"; and in others it was not used at all. Of late its use has been abandoned in cases dealing with questions of federal power under the Commerce Clause.

In the Shreveport Rate Cases,… the Court held that railroad rates of an admittedly intrastate character and fixed by authority of the state might, nevertheless, be revised by the Federal Government because of the economic effects which they had upon interstate commerce. The opinion of Mr. Justice Hughes found federal intervention constitutionally authorized because of "matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance."…

The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause, exemplified by this statement, has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be "production," nor can consideration of its economic effects be foreclosed by calling them "in-direct." The present Chief Justice [Stone] has said in summary of the present state of the law:

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce.… The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.… It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.…

Whether the subject of the regulation in question was "production," "consumption," or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether in the absence of Congressional action it would be permissible for the state to exert its power on the subject matter, even though in so doing it to some degree affected interstate commerce. But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect."

The parties have stipulated a summary of the economics of the wheat industry. Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states on average have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply as well as for wheat for export and carry-over.

The wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The decline in the export trade has left a large surplus in production which, in connection with an abnormally large supply of wheat and other grains in recent years, caused congestion in a number of markets; tied up rail-road cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.

Many countries, both importing and exporting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and self-sufficiency. The four large exporting countries of Argentina, Australia, Canada, and the United States have all undertaken various programs for the relief of growers. Such measures have been designed, in part at least, to protect the domestic price received by producers. Such plans have generally evolved towards control by the central government.

In the absence of regulation, the price of wheat in the United States would be much affected by world conditions. During 1941, producers who coöperated with the Agricultural Adjustment program received an average price on the farm of about $1.16 a bushel, as compared with the world market price of 40 cents a bushel.

Differences in farming conditions, however, make these benefits mean different things to different wheat growers. There are several large areas of specialization in wheat, and the concentration on this crop reaches 27 per cent of the crop land, and the average harvest runs as high as 155 acres. Except for some use of wheat as stock feed and for seed, the practice is to sell the crop for cash. Wheat from such areas constitutes the bulk of the interstate commerce therein.

On the other hand, in some New England states less than one per cent of the crop land is devoted to wheat, and the average harvest is less than five acres per farm. In 1940 the average percentage of the total wheat production that was sold in each state, as measured by value, ranged from 29 per cent thereof in Wisconsin to 90 per cent in Washington. Except in regions of large-scale production, wheat is usually grown in rotation with other crops; for a nurse crop for grass seeding; and as a cover crop to prevent soil erosion and leaching. Some is sold, some kept for seed, and a percentage of the total production much larger than in areas of specialization is consumed on the farm and grown for such purpose. Such farmers, while growing some wheat, may even find the balance of their interest on the consumer's side.

The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant.

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.…

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.

Further Resources


Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford University Press, 1998.

Desmond, Charles S. Mr. Justice Jackson: Four Lectures in His Honor. New York: Columbia University Press, 1969.

Gerhart, Eugene C. Supreme Court Justice Jackson, Lawyer's Judge. Albany, N.Y.: Q Corporation, 1961.

Hockett, Jeffrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman & Littlefield Publishers, 1996.


Craddock, Ashley. "In Court, Arguing for Net Speech as Commerce." Wired News, April 23, 1997. Available online at,1283,3361,00.html; website home page: (accessed June 8, 2002).

Reynolds, Glenn Harlan. "Kids, Guns, and the Commerce Clause: Is the Court Ready for Constitutional Government?" Policy Analysis 216, October 10, 1994. Available online at; website home page: (accessed June 8, 2002).

United States v. Lopez. 514 U.S. 549 (1995). Available online at ; website homepage: (accessed April 20, 2003).

U.S. Constitution, Article I. Available online at ; website home page: (accessed April 20, 2003).