National Security and the Commerce Clause

March 23rd, 2012

Mary Dudziak threads a link between the government’s power to provide for national security, and its commerce power, in the context of Wickard v. Filburn.

“Overshadowing everything is the world crisis,” Wickard argued in a May 19, 1941 speech (quoted in part in the lower court opinion).

The times through which we are passing will decide what kind of a future the United States will have.  We are determining whether we intend to remain a great democracy, and perhaps a great world power.

We must plan our lives and everything we do in the light of the world situation.  What farmers plant and when they plant it is directly affected by the titanic struggle going on overseas.

Wickard argued that federal control over wheat was crucial, so that the federal government would have a predictable supply.  The U.S. needed to send wheat to England, a wheat-importing country, that was increasingly isolated by the Germans.  Wickard called on farmers to do their patriotic duty and comply with federal law because that would enable the U.S. government to use wheat supplies to help England fight the Nazis.  The speech had confused Filburn about his wheat quota, so it was part of the record before the Court.  This aspect of Wickard is important to the history of federalism.  It helps us to see the post-1937 expansion of federal power not as a defensive reaction to the Court-packing crisis and the politics of the late ‘30s, but instead in the context of the importance of federal control over the economy during war.  A stronger role for the states wilted in the face of war-related national security.  (I’ll add a link to the speech as soon as I have a chance.)

I had never considered this angle. This is why I find it fascinating to view cases in the context of their time.