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\u2014and this is a fact that should have us all rushing to take up ballots against our oppressors\u2014that Congress, according to the Supreme Court\u2019s interpretation of the commerce clause, can legislate that you give Christmas presents.<\/p>\n
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 … Continue reading
\nNow that I have your attention, please allow me to issue a few caveats. First and foremost, they couldn\u2019t call them Christmas presents. That would violate another part of the Constitution, the establishment clause of the 1st Amendment. They can\u2019t 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\u2019s say that they have to call them \u201clovely parting gifts.\u201d
\nSecond, I\u2019m stretching things a little with the verb \u201cgive.\u201d Congress can quite clearly require you to purchase lovely parting gifts, but we\u2019re on much firmer precedential ground if you purchase them for yourself. Still, as I think we\u2019ll see, the purpose to which you put the purchases is irrelevant, which makes the \u201cgifting requirement\u201d at least plausible.
\nNow, 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.
\nOur 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\u2014feeding his animals, saving as seed for the next season, and milling into flour for his family\u2019s 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.
\nWell, 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.)
\nThe Supreme Court, however, upheld Congress\u2019 ability to regulate the wheat grown for Filburn\u2019s 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\u2019s a neofunctionalist reading this, they have to be thinking \u201cspillover!\u201d). Here the court went a small step\u2014or more accurately, a great leap\u2014beyond that. Filburn\u2019s wheat for his own consumption affected interstate commerce, because if he hadn\u2019t 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.
\nOf course, Filburn\u2019s 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.
\nNow, 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\u2014might have bought, and if everyone else did it\u2014to 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.
\nEven 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<\/em>, Congress can legislate to prevent that.
\nAnd 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.
\nSo my Christmas prayer is this, that Congress never realize this, so that they will not debase the act of giving in this way.<\/p>\n","protected":false},"excerpt":{"rendered":"