This is Part 2 of Does the Constitution Really Say? — a multi-part series by Jeff Bayard, running through the end of June 2026. Each piece asks: does the Constitution really say what the courts now say it says? Read Part 1 here.
Three words, ratified in 1788.
One ruling, handed down in 1942.
Your backyard, federal jurisdiction.
In 1941, an Ohio farmer named Roscoe Filburn planted twenty-three acres of wheat on his own land. He used the wheat to feed his livestock, grind into flour for his wife’s bread, and keep as seed for the next year. He sold none of it. It never left his farm.
The federal government imposed a marketing penalty of $117.11 on him — roughly $2,250 in today’s money — for growing too much wheat.
The Department of Agriculture had set a wartime wheat quota under the Agricultural Adjustment Act of 1938. Filburn’s quota was 11.1 acres. He had planted twenty-three. The fact that he never sold a bushel did not matter. The fact that the wheat never left his farm did not matter. The fact that he ate it himself did not matter. The federal government claimed authority over Roscoe Filburn’s wheat under the Commerce Clause.
He sued. He lost.
So this is the question worth asking, plainly. Does the Constitution really say a farmer’s own wheat is interstate commerce?
What the Words Meant
Notice first what the Constitution does not say. It does not say “interstate commerce.” That phrase was invented later — it never appeared in a Supreme Court majority opinion until 1869, and only became dominant after Congress passed the Interstate Commerce Act of 1887.
The Framers wrote “commerce among the several States.” Article I, Section 8, Clause 3. At the founding, “commerce” meant trade — buying, selling, bartering. “Among the several States” meant between the states, not within them. Samuel Johnson’s 1755 dictionary, the reference work the Framers themselves used, defined commerce as “intercourse; exchange of one thing for another; trade; traffick.”
James Madison explained the clause in Federalist No. 42. The problem the Framers were solving, he wrote, was “the interfering and unneighborly regulations of some States” — the trade barriers that states had erected against each other under the Articles of Confederation. The Commerce Clause was written to keep the new nation’s internal market open.
Madison and the men who drafted the clause were not naive about federal appetite. They had just fought a war against a king who claimed regulatory authority over everything his subjects produced. They limited federal power to commerce among the several States — three specific words — so that no future Washington could claim authority over what a man grew on his own land.
What the Words Now Mean
In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court ruled that Congress could regulate Filburn’s wheat. Justice Robert Jackson, writing for a unanimous Court, reasoned this way: even if the wheat never entered interstate commerce, even if it never left his farm, even if he ate it himself — if enough farmers like Filburn grew their own wheat, the aggregate effect would substantially affect the interstate wheat market the federal government was trying to regulate.
Jackson wrote: “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
Notice the swap. The Constitution says commerce among the several States. The Court said anything that, in the aggregate, might affect commerce. The Court did not deny that Filburn’s wheat was neither commerce nor interstate. The Court simply said it did not matter.
Three words on a page, ratified in 1788, were quietly read to mean something the men who ratified them would have found unrecognizable.
What Happened Next
In 2005, the Supreme Court applied Wickard to two California women, Angel Raich and Diane Monson. Federal law banned marijuana cultivation under the Controlled Substances Act. California had passed the Compassionate Use Act, making medical marijuana legal under state law. Raich suffered from severe chronic pain and a life-threatening medical condition. Her physician recommended medical marijuana. Monson grew six plants on her own property. The federal Drug Enforcement Administration raided Monson’s home and destroyed her plants. The constitutional question was not whether federal law banned what they were doing — it did. The question was whether the Commerce Clause gave the federal government authority to reach a local plant grown on private property under a state law that authorized it.
Both women sued. They lost. In Gonzales v. Raich, the Court ruled that federal authority reached their local cultivation — because if enough Californians grew their own marijuana, the aggregate effect would substantially affect interstate markets. Same logic. Same Commerce Clause. Sixty-three years later, the doctrine was still doing the work.
Today, Wickard underwrites a vast body of federal regulatory authority — civil rights enforcement against local businesses, federal labor and wage rules, federal environmental regulation. All of it rides on the same redefinition that swept up Filburn’s wheat.
The strongest argument for the new reading is honest enough to admit. A modern national economy is more interconnected than what the Framers saw in 1788. Activity in one state really does ripple into another.
But the Framers anticipated changing conditions. They built into the Constitution itself the mechanism for legitimate adaptation — Article V, the amendment process. If the modern economy requires federal authority over activities that are not commerce and not interstate, the proper answer is to amend the Constitution. The improper answer is to leave the words unchanged and let the Court read them to mean something else.
Did God Really Say?
The pattern of redefinition is older than the United States. In Genesis 3, the serpent comes to Eve and questions what God said. Then he twists it. God had said you will surely die. The serpent answered, you will not surely die. Once the words came loose from their meaning, the protection they provided came loose with them.
Proverbs 22:28 says it plainly. “Do not move the ancient landmark which your fathers have set.” The landmark marks where one man’s property ends and another’s begins. It marks where one authority ends and another’s begins. When the words that established the landmark can be slipped from one meaning to another while the markers on the ground stay where they are, every boundary in the law becomes negotiable.
The Constitution drew a landmark on the ground in 1788. Commerce among the several States. Three words. The Court moved the landmark in 1942 without ever amending the document that placed it there.
What the Citizen Does
Read the document. Know what the words meant when they were ratified. When a federal agency tells you that your private activity on your own property falls under interstate commerce, ask the question this series is named for. Does the Constitution really say that? If the words mean what they meant when the people ratified them, the answer is almost always no.
There is no better place to start than Constitution 101 and other Hillsdale College’s free online courses. Hillsdale accepts no state or federal taxpayer funding — not even student aid — which keeps its instruction independent of the political pressures that shape so many other schools. They offer dozens of courses at no cost, self-paced, taught by their own faculty, taken by more than four million people. Start with Constitution 101.
The next piece in this series looks at the Slaughter-House Cases of 1873, in which the Supreme Court read the Fourteenth Amendment’s Privileges or Immunities Clause almost out of existence within five years of its ratification.
