In this holiday season, it seems only too necessary to share a thought which occurred to me recently. I can only hope you, dear reader, will not consider me too much of a Scrooge for harshing the holiday mellow. But the fact of the matter is—and this is a fact that should have us all rushing to take up ballots against our oppressors—that Congress, according to the Supreme Court’s interpretation of the commerce clause, can legislate that you give Christmas presents.

Now that I have your attention, please allow me to issue a few caveats. First and foremost, they couldn’t call them Christmas presents. That would violate another part of the Constitution, the establishment clause of the 1st Amendment. They can’t force you to observe a religious holiday. Now, one could well argue that many people celebrate a secular Christmas, and if so, they could well call them that. But to be on the safe side, let’s say that they have to call them “lovely parting gifts.”
Second, I’m stretching things a little with the verb “give.” Congress can quite clearly require you to purchase lovely parting gifts, but we’re on much firmer precedential ground if you purchase them for yourself. Still, as I think we’ll see, the purpose to which you put the purchases is irrelevant, which makes the “gifting requirement” at least plausible.
Now, as those of you who are regular readers have already cottoned on to (and we thank both of you for your perseverance), the fact that I have clearly rounded the bend does not mean that I am necessarily wrong. So allow me to impose on your patience slightly longer in order to make my case. I think you will agree that in this case, the laws must be crazy.
Our story starts on a farm in Ohio, where Roscoe P. Filburn keeps dairy cattle and some pigs, and also grows some wheat. He sells some of the wheat, but he also grows several acres for his own use—feeding his animals, saving as seed for the next season, and milling into flour for his family’s baking needs. The Agricultural Adjustment Act of 1937 sets quotas for the acres of wheat a farmer can plant. Farmers have to apply for a marketing card in order to sell their allotted amount of wheat.
Well, Mr. Filburn plants his allotted acres to sell, but plants several more for his own needs. When the Department of Agriculture fines him for the amount of wheat he has grown above his quota, he sues, claiming that Congress lacked the authority to regulate as interstate commerce the wheat that did not even leave his farm, let alone the state. (Congress had passed the AAA under its interstate commerce authority.)
The Supreme Court, however, upheld Congress’ ability to regulate the wheat grown for Filburn’s personal use under the interstate commerce power. The court had moved from allowing the regulation of things actually in interstate commerce (which are clearly within the meaning of the clause) to allowing federal regulation of activities which had a substantial effect on interstate commerce (and if there’s a neofunctionalist reading this, they have to be thinking “spillover!”). Here the court went a small step—or more accurately, a great leap—beyond that. Filburn’s wheat for his own consumption affected interstate commerce, because if he hadn’t produced it himself, he might have bought it, and that grain might have come from interstate commerce. In essence, his self-production displaced interstate commerce.
Of course, Filburn’s actions did not themselves have a substantial effect on interstate commerce. But, if everyone produced their own wheat, the interstate market in wheat would disappear. And Congress could regulate to ensure the presence of an interstate market.
Now, this last assertion is perhaps strong. The authority to regulate an action when it occurs is not necessarily the same as the authority to call the action into existence. More outrageous is the use of two conditional statements—might have bought, and if everyone else did it—to determine a court case. In essence, the court found Filburn guilty based on what others might have done, which is an insult to our justice system.
Even more egregious is this: there is little, if anything, which this ruling leaves outside of the scope of Congressional action. So if you fail to buy lovely parting gifts as we say farewell to this year, and if everyone else did the same, there would be a tremendous reduction in interstate commerce. Many interstate retailers rely on the Christmas season for their profits. Some might go out of business. According to Wickard, Congress can legislate to prevent that.
And Congress could probably also require you to give the gifts. After all, buying for others (and they could clearly outlaw homemade gifts) increases the amount you must consume, and as you will sometimes incorrectly anticipate the needs or desires of others, there will be even more commerce.
So my Christmas prayer is this, that Congress never realize this, so that they will not debase the act of giving in this way.