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Will Supreme Court’s Ignorance Torpedo Americans’ Freedom?


Americans have never had reliable protection against the ignorance of the Supreme Court. During the past 80 years, Supreme Court justices have routinely rubber-stamped government policies that they grossly failed to understand. Black-robed economic illiteracy is perhaps the Obama administration’s best hope in the Court’s pending decision on the constitutionality of Obamacare.

At the oral arguments in late March, neither the justices nor the attorneys arguing the case seemed to understand the 1942 precedent case that provides the linchpin for Obamacare’s individual mandate. In Wickard v. Filburn, the Supreme Court decreed that “it is hardly lack of due process for the government to regulate that which it subsidizes.” But the Roosevelt-era Court completely failed to recognize how the feds had ravaged a market before they forcibly seized control over all producers.

At the time of the 1942 ruling, the Department of Agriculture dictated how many acres each of the nation’s 1.5 million wheat farmers could grow. Roscoe Filburn, an Indiana farmer who slightly exceeded his quota, claimed that the government had no right to prohibit him from growing wheat on his own land to feed to his livestock. The Roosevelt administration, in a brief to the Supreme Court, claimed that it must have a free hand to “suppress … a public evil.”

And what was the “public evil”? Wheat surpluses. The Court unanimously concluded that the government was justified even in restricting “the amount of wheat … to which one may forestall resort to the market by producing for his own needs.”

The Court concluded that federal action was justified in part because wheat exports had fallen sharply since the 1920s, resulting in a “large surplus in production.” But that surplus existed largely because the Roosevelt administration had driven the price of U.S. wheat to almost three times the world market price. Planners assumed that high crop prices would somehow make America rich — or at least spur a national recovery.

The Roosevelt administration scorned exports, preferring to restrict domestic production in order to inflate U.S. prices. Nobel laureate economist Theodore W. Schultz denounced New Deal farm programs for “putting a ‘Chinese Wall’ around our export farmers.”

The Roosevelt administration first murdered the wheat exports and then threw itself on the Court’s mercy on the grounds that wheat farmers were orphans. But the justices in 1942 showed scant curiosity about the cause of the loss of exports, treating it like an act of God.

The key to Roosevelt’s policy was that prices were no longer permitted to provide signals to buyers and sellers. High federal price supports encouraged farmers to boost production, and then politicians cited supposed surpluses as proof of the need for perpetual control of agriculture. The Supreme Court’s decision empowered the Agriculture Department to trample farmers’ rights and freedoms for the next 60 years.

Unfortunately, at least some of today’s Supreme Court members are as clueless as the 1942 panel that swallowed the government’s self-serving claims. Justice Stephen Breyer asked one of the lawyers arguing about Wickard’s relevance to Obamacare, “Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?” Similarly, Justice Ruth Ginsburg declared that “Wickard was you must buy; we are not going to let you use the home-grown wheat. You have got to go out in the market and buy that wheat that you don’t want.”

If Supreme Court justices have zero understanding of the most important precedent for Obamacare, it is unlikely that they will recognize the danger of sanctifying politicians’ vast arbitrary power over health care.

There are stark parallels between the growing federal takeover of medical care and the 1930s takeover of agriculture. In the same way that high price supports spurred farmers to boost wheat production, government subsidies have driven up the demand for health-care services. The feds helped set off a health-care price explosion — and then invoked rising costs to justify seizing far more power over doctors, hospitals, insurance companies, and private citizens. When Barack Obama bewails the number of Americans without health insurance, he forgets to mention that legislative and bureaucratic mandates have made health insurance far more expensive than it would otherwise be. The market for medical services has been ravaged almost as badly as U.S. farm markets in the New Deal era.

The mere fact that government throws money at an activity does not entitle Uncle Sam to dictate endless terms to both producers and consumers. Neither Congress nor the Supreme Court has any right to control what they do not understand. “Good intentions” cannot absolve perpetual economic mangling.

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.