Filburn was an Ohioan caught in the toils of federal agriculture policy. In 1983 Congress passed an anti-Depression measure called the Agricultural Adjustment Act, which sought to stabilize commodity prices by restricting production. In 1986-the last year of constitutional government, as some conservatives see it-the Supreme Court struck down that Act on the ground that the federal government was prohibited from regulating production by the Tenth Amendment, which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
But the Court’s composition changed, and one justice began reading the Constitution by the flickering light of election returns. So there came to be another Agricultural Adjustment Act, which authorized the setting of production quotas not only for wheat sold into interstate commerce but also for wheat that was consumed on the farm as food or seed or feed for poultry and livestock. Filburn thought that this provision, as a putative exercise by the federal government of its power to regulate interstate commerce, was a bit thick. So he produced 269 bushels of wheat in excess of his quota for use as chicken feed on his farm, and refused to pay the stipulated penalty. The case reached the Supreme Court, which used it to further dismantle the constitutional doctrine (a.k.a. the Framers’ design) that the federal government is a government of limited and enumerated powers.
The Court upheld the provision, arguing that the cumulative effect of even minor and local economic activities can have interstate consequences-rather like the butterfly in Brazil, the beating of whose wings has some effect, indiscernible but supposedly real, on Detroit’s weather. The Court said that even if wheat such as Filburn’s bushels never goes to market, “it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.” And if wheat prices rise, many farmers like Filburn might send their wheat grown for home use to market after all, upsetting the government’s plans.
Clearly this was a far cry from what the Constitution’s Framers had in mind when they reassured various state ratifying conventions that the new central government would be limited to powers enumerated in the document, and would be further limited by various amendments, one of which became the Tenth. What happened to cause (as Pete du Pont says) that amendment to become “to the Constitution what the Chicago Cubs are to the World Series–of only occasional appearance and little consequence”?
The Constitution’s enumeration of limited powers turned out to be unconfining, particularly when construed by people eager to augment national power. In the hands of people unsympathetic to decentralization, the enumerated power to, for example, tax and spend for “the general welfare” is not very limiting. So whatever power the Tenth Amendment has in any epoch is less as a leash that enforces particular behavior on the federal government than as the Framers’ endorsement of a general predilection for decentralization.
That predilection got run over by a steam locomotive. Michael Rothschild, president of The Bionomics Institute in San Francisco, locates a crucial constitutional turning point in an economic development-the founding in 1828 of America’s first railroad, the Baltimore & Ohio. “Unavoidably,” writes Rothschild, “the rise of the railroads undermined the decentralized vision of America’s Founders.” The private power of national enterprises shaping national markets caused many Americans to think nationally and to regard states’ powers as feeble anachronisms. Another development with constitutional consequences was intellectual. It was the cult of science, of modernity, of expert elites that seized the nation’s imagination early in the 20th century and favored the concentration of government power.
Rothschild suggests that the revival of the constitutional theory of decentralization was fostered by a scientific event in 1971-the Intel Corporation’s introduction of the first microprocessor. A decade later there were millions of such slivers of silicon in personal computers and millions more in fax machines, cellphones, voice-mail systems and other devices. In 1989 fax and e-mail traffic soared. Rothschild writes that the Information Age began in earnest as the Berlin Wall, symbol of the century’s centralizing tendencies gone mad, collapsed. So today people sitting in bed at midnight in Arizona shop by telephone at L.L. Bean in Maine, and suburbs and rural areas are rapidly gaining jobs and the centralizing impulse is a spent force.
Small wonder, says Rothschild, that the Clintons’ health care plan, “the next logical step in the consolidation of federal power,” was unappealing. Centrally designed and controlled social policies no longer imply rationality and fairness but “bureaucracy, Kafkaesque regulation and one-size-fits-all mass production.” He suggests a test: “If you had to trace a missing package, would you rather deal with the U.S. Post Office or Federal Express? If you had to correct an error on your retirement account, would you rather deal with Social Security or your mutual fund?”
Today the Framers’ constitutional vision of decentralized governance, until quite recently regarded as a quaint antique, is being rejuvenated by modernity. Thus do arguments acquire momentum from events.
