Wickard is hardly one of the most important decisions of all time. The outcome of the ruling was that all three branches of the federal government agreed with one another that the Commerce Clause allows the federal government to impose quotas on home-grown produce, and punish farmers who do not comply with the quotas. So what? How many presidential campaigns, since 1942, have occurred without any mention of
Wickard? Robert Bork spent all of one page discussing that case (in The Tempting of America). In the midst of criticizing the Court's decision, he briefly acknowledged what the Court's reasoning was and said that the reasoning had "Sound economics without doubt."
Sound economics without doubt, BUT, ..... if the case had been handled just six years earlier, the result would have been different. Bork said it was judicial activism to rule the way the Court did, but it was based on sound economics - without doubt - anyway. So ........ yeah, something important happened (I ask)?
Another scholar I have a helluva lot of respect for, David P. Currie, said that
Wickard did not spell the end of federalism in the U.S. The end had actually been five years before that. Currie said that
Wickard was only an "epitaph; constitutional federalism had died in 1937." (Currie, David P.; The Constitution in the Supreme Court, The Second Century, 1888-1986; 1990; page 238.)
In order to overrule
Wickard, I have to ask two questions: 1) is the federal quota on home-grown produce still around, in the Agriculture Dept., today? If it isn't, 2) is Congress going to create such a quota again any time, sooner or later? Like, is the Farm Bureau lobby more powerful today?
For the last five years I have been supporting an organization called
Convention of States Project.
Looky here too. And here. This organization is endorsed by several prominent Republicans, such as former Senators Jim DeMint and Rick Santorum, Marco Rubio, Rand Paul, Chip Roy, and I've forgotten the rest who are still living. Mark Levin's book
The Liberty Amendments has been hugely influential on the leaders and supporters of COSP. This organization has some conservative opponents too, like the John Birch Society, the Eagle Forum, and a gun-ownership lobbyist in Pennsylvania. In any event, one of the expressed goals of the leaders of COSP is to adopt an amendment that will restore our Founding Fathers' original understanding of the word "commerce" in Article 1 of the Constitution. That is, restore the 18th Century, the 19th Century, and maybe even the early 20th Century meaning of "commerce." I'm sure an amendment like that is going to reverse a heck of a lot more case law than just
Wickard. It will pretty much wipe out tons of current federal bureaucracy - the entire Departments of Education and Energy, the EPA, the Endangered Species Act, who knows how much more federal bureaucracy, and probably even the 1964 Civil Rights Act and the 1968 Fair Housing Act.
Mark Meckler talks as if he'd like to see everything but the State Dept., the Dept. of Defense, the Dept. of Veterans Affairs, the Treasury Dept., and the Justice Dept. get wiped out.
Probably a pretty high percentage of current Republican state legislators will want to ratify such a proposal, but I can't imagine 1 - not one, single, solitary - Democrat state legislator can be persuaded to ratify a proposal like that, which means it'll end up in the round file of history.
