From “Horse-and-Buggy” to Wickard v. Filburn: The Roosevelt Revolt and the Supreme Court’s 1937 Reinterpretation of the Commerce Clause by Luke Angelillo '21

From “Horse-and-Buggy” to ​Wickard v. Filburn​: The Roosevelt Revolt and the
Supreme Court’s 1937 Reinterpretation of the Commerce Clause
Luke Angelillo ‘21
Abstract:​This paper will examine the Supreme Court’s radical reinterpretation of the Commerce Clause in
1937, a development that significantly expanded the reach of Congress. ​I make the argument that this seismic
shift in jurisprudence was a largely positive development from the previously narrow Jeffersonian
interpretation.​ By way of delivering economic protections and later a pragmatic, constitutional defense of
landmark civil rights legislation, subsequent history has demonstrated that “the switch in time that saved nine”
was necessary in order to secure some of the freedoms Americans most treasure. The paper concludes with a
brief discussion of the Court’s recent return to a narrower reading of the Commerce Clause, an alarming trend
that only highlights the wisdom of the 1937 shift.
INTRODUCTION
Reflecting on his most frustrating experiences teaching constitutional law, University of Minnesota law
professor Daniel Farber once observed that “we professors are often as bored by the Commerce Clause as our
students.”​ 1​ Nonetheless, he continued, “the judicial struggle to define the congressional commerce power is a
crucial part of constitutional history.”​ 2​ Contemporary discourse over the proper interpretation of the
Commerce Clause is indeed one of the most ubiquitous and contentious debates in American legal circles. Of
particular interest to many scholars is the Supreme Court’s radical reinterpretation of the Commerce Clause in
1
Daniel Farber, "Teaching the Commerce Clause: A Problem Approach," University of Minnesota, accessed October
19, 2019, https://conservancy.umn.edu/bitstream/handle/11299/169789/04_02_Teaching_ The_ Commerce_
Clause_DAF .pdf;jsessionid=F74E04BD66F39E6067F9F9A8C9E9AA7E?sequence=1.
2
Ibid.

1937, a development that has been both derided as an abrogation of the Constitution and applauded as a
necessary reform. However, despite its critics, the Court’s New Deal evolution should be evaluated as an
unambiguously positive shift in judicial philosophy; the more inclusive Commerce Clause jurisprudence that
resulted provided legal justification for many of the fundamental protections Americans enjoy today. Although
the Marshall Court of the early 19th century explicitly asserted a limited congressional right to regulate
interstate commerce, for more than a hundred years afterwards the Court proved unwilling to use the doctrine
to uphold federal legislation protecting civil rights and economic regulation—much to the detriment of the
public. This trend culminated in the Lochner era, a period from 1897 to 1937 which embodied the Court’s
deference to laissez faire economics and freedom of contract. However, with a historic electoral mandate,
pointed rhetoric, and savvy political maneuvering, Franklin Roosevelt successfully swayed the Court to adopt a
more expansive interpretation of the Commerce Clause, ending the Lochner era and augmenting federal
authority. This new jurisprudential paradigm—most clearly articulated in ​Wickard v. Filburn​ (1942)—not
only saved the New Deal, but moreover provided a pragmatic legal framework for which to uphold the civil
rights legislation of the 1960s. Thus, by supplanting previous courts’ strict conception of the Commerce Clause
with a more flexible interpretation, the “switch in time that saved nine” represented a serious improvement that
better secured the economic livelihoods and civil rights of Americans.
THE EARLY CONSEQUENCES OF A NARROW READING OF THE COMMERCE CLAUSE
While acknowledging the federal government’s authority to regulate interstate commerce, the Marshall
Court and the subsequent courts of the 19th century endorsed a narrow reading of the Commerce Clause.
Originally included in the Constitution as a mechanism to prevent the sort of ruinous trade restrictions
common amongst the states under the Articles of Confederation, the exact meaning of the clause was debated at

the Convention and within George Washington’s cabinet. Arguing on behalf of an expansive interpretation of
the clause, Alexander Hamilton suggested that the “power to regulate trade is a power to make all needful rules
and regulations concerning trade.”​ 3​ In stark contrast, Thomas Jefferson supported a restrictive definition of
interstate commerce: “to make a thing which may be bought and sold, is not to prescribe regulations for buying
and selling.”​ 4​ The Supreme Court would eventually go on to directly address the Commerce Clause in ​Gibbons
v. Ogden​ (1824), a case in which it determined that a New York state law granting a navigation monopoly
usurped federal law and was therefore unconstitutional.​ 5​ While at first blush the decision seemingly established
the Hamiltonian reading of the Commerce Clause as the law of the land, subsequent constitutional history
supports the notion that Jefferson ultimately triumphed. Although John Marshall asserted that Congress’s
commerce powers had “no limitations other than are prescribed in the Constitution,” over the next century the
Supreme Court found those limitations to be abundant.​ 6​ In striking down a federal law prohibiting the sale of
certain flammable oils, Chief Justice Salmon P. Chase wrote for a unanimous court in ​United States v. DeWitt
(1869) that “this express grant of power to regulate commerce among the states has always been understood as
limited by its terms.”​ 7​ Furthermore, the Court was also unsympathetic to efforts to use the Commerce Clause
to justify Reconstruction era civil rights legislation. The majority decision in the ​Civil Rights Cases​ (1883)
declined to address the possibility that the clause was applicable, allowing the Civil Rights Act of 1875 to be
gutted.​ 8​ Thus, by the turn of the century, the Court’s strict application of the Commerce Clause was already
having a deleterious impact on consumers, laborers, and minorities through the dismantling of legislation
designed to protect them. These injuries would only increase over the first third of the 20th century.
3
Thomas Jefferson, ​Opinion on the Constitutionality of a National Bank​, 1.
4
Ibid, 2.
5
​Gibbons v. Ogden​, 22 U.S. 1 (1824).
6
​Gibbons​, 22 U.S. 196.
7
​United States v. Dewitt​, 76 U.S. 44 (1869).
8
​Civil Rights Cases​, 109 U.S. 3 (1883).

This highly selective usage of the Commerce Clause crescendoed to its peak during the forty-year
Lochner era, a period over which the Supreme Court grew increasingly comfortable striking down progressive
economic legislation. Named for Justice Rufus Peckham’s infamous decision in ​Lochner v. New York​ (1905)
that a statute mandating a 60 hour maximum work week for bakers was unconstitutional, the Supreme Court’s
jurisprudence from 1897 to 1937 relied extensively on the use of substantive due process to invalidate legislation
that interfered with citizens’ freedom of contract. While mostly driven by this dedication to freedom of
contract, the overarching laissez faire thrust of the Court during this time was also reflected in its heightened
constriction of the Commerce Clause. Despite a few exceptions—​Swift and Company v. United States​ (1905)
serves as a notable example—the Supreme Court abided by a strict conception of interstate commerce. The
Court’s decision in ​Hammer v. Dagenhart​ (1918) was emblematic of the period. In nullifying the
Keating-Owen Child Labor Act, Justice William Day wrote for the majority that
“the making of goods and the mining of coal are not commerce, nor does the fact that these
things are to be afterwards shipped or used in interstate commerce, make their production a
part thereof.”​ 9
Day’s language mirrored that of other opinions representative of the era, such as the decision in ​Adair v.
United States​ (1908) that there was no “possible legal or logical connection” between interstate commerce and
a federal law prohibiting yellow-dog contracts, which required workers not to join a union as a condition of
employment.​ 10​ Although based on a genuine belief that the Commerce Clause was to be construed narrowly,
the Court’s decisions had serious consequences: more than 500,000 children toiled in factories, workers could
be denied the right to join a union, and women could be paid pennies an hour for heavy labor.​ 11​ This trend
continued past the Progressive Era, through the Roaring Twenties, and into Roosevelt’s first term. Frustrated
by the repeated nullification of his legislative agenda by the Supreme Court, Roosevelt hatched a plan that
9
​Hammer v. Dagenhart​, 247 U.S. 272 (1918).
10
​Adair v. United States​, 208 U.S. 178 (1908).
11
Lam Thuy Vo, "Child Labor in America." NPR, accessed October 19, 2019, https://www.npr.org/sections/money/
2012 /08/16/158925367/child-labor-in-america-1920.

would not only save the New Deal, but also radically alter Commerce Clause jurisprudence for the next 60
years.
THE JURISPRUDENTIAL REVOLUTION AND ​WICKARD
Roosevelt’s discontent towards the Court had been gradually building over the course of his first term.
Haunted by the Supreme Court’s conservative Four Horsemen, Roosevelt had endured constant blows to his
New Deal agenda fueled by a narrow reading of the commerce clause. Marquee legislation such as the National
Industrial Recovery Act and the Agricultural Adjustment Act of 1933 were eviscerated for failing to pass
constitutional muster. By 1936 a borderline revolutionary Roosevelt felt that structural change was necessary
to combat a Supreme Court intent on abiding by a “horse-and-buggy definition of interstate commerce.”​ 12
Roosevelt had long prepared for this seemingly inevitable showdown with the judiciary. As early as 1933 he
had tasked his cabinet secretaries with investigating the possibility of judicial reform, an assignment that
produced a diverse roster of solutions: preliminary suggestions included stripping the Court of its ability to
conduct judicial review and a constitutional amendment.​ 13​ However, it would not be until December 1936
that Attorney General Homer Cummings presented Roosevelt with a satisfactory plan. Ironically based upon
an old memo drafted by Horseman James McReynolds, the proposed legislation would allow Roosevelt to add
an additional justice for each current member over the age of 70. After keeping the legislation under wraps for
more than a month, Roosevelt made the surprise announcement at an exclusive banquet reserved for the
Court and high-ranking congressmen. Nonchalantly tacking on the proposal as a coda to his speech, one
observer remarked that Roosevelt appeared reminiscent of a “Roman Emperor who looked around his dinner
12
William Leuchtenburg, "When Franklin Roosevelt Clashed With the Supreme Court— and Lost," Smithsonian,
accessed October 19, 2019,
www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/.
13
Leuchtenburg.

table and began to laugh when he thought how many of those heads would be rolling on the morrow.”​ 14
Following Roosevelt’s public announcement of the Judicial Procedure Reform Act three days later, the bill
quickly became a cause c​élèbre​. Less than 60 days later, however, the Supreme Court had reversed course and
sided with the administration; Justice Owen Roberts’ timely ideological shift led to a progressive victory in
West Coast Hotel Co. v. Parrish​ (1937) and an expansive reimagining of the Commerce Clause in ​NLRB v.
Jones and Laughlin Steel Co.​ (1937). While historians still debate whether Roosevelt’s pressure, a sincere shift
in ideology, or a capitulation to overwhelming public opinion ultimately flipped the Court, the jurisprudential
repercussions of the switch were and remain clear. No longer wedded to a Jeffersonian conception of the
Commerce Clause, the Court transformed from a legislative roadblock into a rubber stamp on Roosevelt’s
domestic agenda.
Wickard v. Filburn​ (1942) represents perhaps the clearest articulation of the Supreme Court’s novel
interpretation of the Commerce Clause. After having its previous iteration struck down by the Court,
Congress passed a new Agricultural Adjustment Act in 1938. Among other things, the legislation set a limit on
individual wheat production in order to stabilize the market. Roscoe Filburn, an Ohio farmer, challenged the
law after he was penalized for exceeding the federal quota. Arguing that the excess wheat—which he used
exclusively for personal consumption and to feed his livestock—was not even tangentially related to interstate
commerce, Filburn alleged that the bill relied on an unconstitutional application of the Commerce Clause. In a
unanimous decision penned by Justice Robert Jackson, the Court not only rebuked Filburn but moreover a
century of precedent. Quoting from Chief Justice Harlan Stone’s recent opinion in ​United States v.
Wrightwood Dairy Co.​ (1942), Jackson reiterated that
“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
14
Ibid.

the attainment of a legitimate end, the effective execution of the granted power to regulate
interstate commerce… 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.”​ 15
Filburn’s argument that his activity did not constitute commerce was therefore irrelevant. Rather than
performing the semantic gymnastics necessary to define an activity as commercial, Jackson embraced a more
flexible legal realism: “whatever its nature, [any activity can] be reached by Congress if it exerts a substantial
economic effect on interstate commerce.”​ 16​ While Filburn’s overharvesting was inconsequential by itself, the
cumulative effect of hundreds of farmers growing excess wheat amounted to a “far from trivial” impact on
interstate commerce, granting Congress the authority to set limits.​ 17​ Overall, this fundamental reinterpretation
of the Commerce Clause proved to be a positive development. An example of the ends justifying the means,
the shift was initially warranted by the importance of dragging the nation out of Depression before being
vindicated again by the necessity of upholding civil rights legislation in the 1960s; consequently, the Supreme
Court’s reading of the Commerce Clause from 1937 to 1995 proved to be a beneficial paradigm switch.
ECONOMIC AND CIVIL RIGHTS PROTECTED BY AN EXPANSIVE READING OF
THE COMMERCE CLAUSE
The most immediate benefit derived from the Court’s new interpretation of the commerce clause was
the protection of crucial New Deal programs. Although the United States was beginning to emerge from the
Depression in 1937, the recovery effort was bolstered by the Supreme Court’s constitutional blessing. In
upholding the Wagner Act in ​NLRB v. Jones ​and​ Laughlin Steel Co.​, the Supreme Court protected the right of
workers to form unions and engage in collective bargaining.​ 18​ This served as a far cry from the Court’s
15
​Wickard v. Filburn​, 317 U.S. 124 (1942).
16
Ibid, 317 U.S. 125.
17
Ibid, 317 U.S. 128.

dedication to freedom of contract during the Lochner era, a commitment that had harmed workers by denying
them protection from often unfair and unsafe labor practices. The Wagner Act was ultimately responsible for
nearly tripling union membership, enhancing productivity, and increasing real wages—a series of outcomes
made attainable by the Supreme Court’s rereading of the Commerce Clause.​ 19​ The survival and subsequent
success of the Fair Labor Standards Act was similarly indebted to the judicial restraint demonstrated by the
Court post—1937. In a complete reversal from its decision in ​A.L.A Schechter Poultry Corporation v. United
States​ (1935), Stone authored the opinion for a unanimous Court in ​United States v. Darby​ (1940) that the
comprehensive Fair Labor Standards Act was constitutional. Originally conceived by then-Justice Hugo Black
during his Senate tenure, the bill mandated a national minimum wage, prohibited most child labor, and
established a 40 hour work week—a laundry list of provisions previously struck down by the Court as an
unconstitutional use of the Commerce Clause. Not only did Stone’s decision reaffirm Congress’s power to
legislate on all these subjects, it went one step further and explicitly repudiated ​Hammer v. Dagenhart​ as a
“departure from the principles which have prevailed in the interpretation of the Commerce Clause.”​ 20​ Thus,
the impressive legacy of the Fair Labor Standards Act—an immediate wage increase for 700,000 Americans,
shortened hours for 13 million workers, and eventually amendments discouraging gender and race based wage
discrimination—is owed in large part to the Court’s Commerce Clause rereading.​ 21
A perhaps accidental but equally significant consequence of the Court’s updated jurisprudence was the
eventual use of the Commerce Clause to uphold civil rights legislation. In its near-unanimous ​Civil Rights
Cases​ decision, the Court had seemingly condemned to failure any attempt to use the 14th Amendment to
prevent racial discrimination by private actors. Foiled by the state action clause and treating the defeat of new
legislation as a fait accompli, Republicans were forced to abandon their ambitious civil rights agenda for want
18
​NLRB v. Jones & Laughlin Steel Corp​., 301 U.S. 1 (1937)
19
"FDR and the Wagner Act," FDR Library, accessed October 19, 2019, https://www.fdrlibrary.org/wagner-act.
20
​United States v. Darby​, 312 U.S. 116 (1941).
21
"Fair Labor Standards Act," US History, accessed October 19, 2019, https://www.u-s-history.com/pages/h1701.html​.

of a constitutional justification. However, the case’s lone dissent actually laid out the blueprint for the eventual
passage of the 1964 Civil Rights Act 80 years later. Arguing that the original civil rights act was constitutional,
the prescient Harlan wondered
“Might not the act of 1875 be maintained in that case as applicable at least to commerce
between the States, notwithstanding it does not, upon its face, profess to have been passed in
pursuance of the power of Congress to regulate commerce… I suggest, that it may become a
pertinent inquiry whether Congress may, in the exertion of its power to regulate commerce
among the States, enforce among passengers on public conveyances equality of right, without
regard to race, color or previous condition of servitude”​ 22
Harlan’s speculation that a law need not be passed in explicit pursuance of the Commerce Clause to be
justified by it proved to be especially predictive. Lyndon B. Johnson did not address the implications of the
Civil Rights Act of 1964 on interstate commerce in his signing speech, and although the bill was clearly passed
with the intention of promoting racial equality, the Court found the act’s strongest constitutional argument in
Article I, not the Equal Protection Clause. Speaking on behalf of the majority, Justice Tom Clark wrote in
Heart of Atlanta Motel v. United States​ (1964) that “the power of Congress to promote interstate commerce
also includes the power to regulate the local incidents… which might have a substantial and harmful effect
upon that commerce,” such as the discriminatory business practices of the Heart of Atlanta Motel.​ 23​ Clark
expressed the same opinion in the related case of ​Katzenbach v. McClung​ (1964), adding that “the power of
Congress in this field is broad and sweeping.”​ 24​ Nearly three decades after the Court had reinterpreted the
commerce clause as delegating broad economic regulatory authority to Congress, it was being used effectively
as an instrument to protect civil rights legislation. Consequently, the Court’s dramatic change in jurisprudence
represented a positive innovation by way of delivering long sought after relief to over 23 million African
Americans.
22
​Civil Rights Cases​, 109 U.S. 60.
23
​Heart of Atlanta Motel, Inc. v. United States​, 379 U.S. 258 (1964).
24
​Katzenbach v. McClung​, 379 U.S. 305 (1964).

THE LEGACY OF THE SHIFT AND A NEW THREAT
From restrictive roadblock to seeming panacea, the two hundred year evolution of the Commerce
Clause is indeed, as articulated by Professor Farber, “a crucial part of constitutional history.”​ 25​ Facilitated by
the political pressuring of a frustrated president, the Court’s embrace of an expansive commerce clause came at
a time when change was necessary and proper. Providing legal protection to Roosevelt’s ambitious economic
agenda and offering a practical defense of 1960s civil rights legislation, the shift serves as not only a triumph for
legal realism, but also a victory for all Americans. While the Court’s Commerce Clause jurisprudence from
1937 to 1995 certainly resulted in the expansion of federal power, this delegation of authority hardly amounted
to congressional tyranny, as charged by some opponents. Rather, contemporary constraint of the Commerce
Clause suggests that at worst, the Court’s 1937 reinterpretation was a necessary evil. Since the Rehnquist
Court’s restriction of the Commerce Clause in ​United States v, Lopez​ (1995), the Supreme Court has struck
down legislation protecting victims of sexual assault and providing for gun-free school zones. Moreover, the
Affordable Care Act only survived because a razor-thin majority agreed it was a tax; a narrow reading of the
Commerce Clause almost left 20 million Americans without health insurance.​ 26​ Thus, even if Justice Antonin
Scalia’s argument that ​Wickard v. Filburn​ “expanded the Commerce Clause beyond all reason” is to be
accepted, history demonstrates that a reading of the Commerce Clause that is overly inclusive is preferable to
one that errs on the side of caution and risks denying the populace important protections.​ 27​ As the current
25
Farber.
26
"Since Obamacare Became Law, 20 Million More Americans Have Gained Health Insurance," Fortune, accessed
October 19, 2019, fortune.com/2018/11/15/obamacare-americans-with-health-insurance-uninsured.
27
Avik Roy. "Scalia And Ginsburg Drop Hints About Obamacare's Fate At The Supreme Court," Forbes, accessed
October 19, 2019,
www.forbes.com/sites/theapothecary/2012/06/17/scalia-and-ginsburg-drop-hints-about-obamacares-fate-at-the-supre
me-court/ #43e70d57e618.

Court continues to grow more willing to constrain the commerce clause, the Supreme Court’s fateful decision
in 1937 to liberalize its interpretation only appears increasingly wise in retrospect.

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