Yet more news from the hustings:  a growing number of people are growing their own tobacco for their own consumption.  Bully for them – depriving the beast of “sin taxes” while denying the Big Three tobacconists of some profit.  

I grew up in the “Tobacco Valley” of Connecticut, and spent many months of many hot, sticky summers working under the engauzed fields of the Connecticut River valley tobacco farms.  I can attest from personal experience that growing tobacco is hard work.  And dirty – it’s damned hard to get the tar off your hands after a 10 hour day topping and suckering.  It’s good to see people so dedicated to avoiding the collusion of our state-corporate tobacco combine that they are willing to put in the hard work for a good (and healthier) smoke.

If enough people were to begin growing their own tobaccy that it were to impact the profits of “Altria” (a.k.a., Philip Morris), you can bet that we’d see some legislation out of Washington banning the growth of any such unhealthy home crops (at the same time we’ll continue to subsidize the corn industry).  And with a case like Wickard vs. Filburn still on the books, there’s not a damned thing any of those entrepreneurial farmers could do about it (Filburn grew some wheat for home consumption in an amount that exceeded government imposed limits.  The court held that his actions – if undertaken widely – would impact interstate commerce, and thus he was subject to the legislation.  Thus, by this reasoning, the reach of Congress is utterly limitless.)  Is anyone surprised that there was virtually no interest in a wider discussion of this line of Commerce Clause jurisprudence in the period leading up to the confirmation hearings of Sotomayor, much less this particular case?  Pardon my heresy, but the expansion of the commerce clause to every possible activity of  the American populace deserves at least as much attention by critics of judicial overreach as that accorded to Roe v. Wade.  And yet, almost no one has ever heard of this case, much less reflected upon its practical implications…

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  1. The same problems come up for those who make their own diesel fuel from used vegetable oil, the argument being that since the “moonshiner” is neither paying taxes on his product (since he isn’t selling it) nor is buying from a supplier, he is robbing the government of tax revenue and reducing demand for product on the market, thereby affecting commerce. From a regulatory standpoint, it is legally questionable whether you may even make biodiesel in any quantity without first registering with the relevant taxing authorities, regardless of whether you intend to sell it or not.

    Here is another story, which while not directly relevant to the commerce clause, is related. (Sorry – I only can point to blog commentary as the news article itself is behind a paywall.)

  2. I liked how the Federal Courts spent time over 239 Bushels of Wheat. In a Civilized Democracy of course, self-sufficiency is to be avoided like the plague because God Forbid the Commonweal became weaned. Agricultural Policy in this country remains the Last Bastion of Soviet Socialism.

    Why should the Federal Judiciary be any less fatuous than their unindicted co-conspirators in the other decaying branches of the State? So what that one of the definitions of “judicious” is “demonstrating good sense or judgement”. The law demands eeeeeemmmmmmmpathy. Well, scratch that, it just demands obeisance to the State.

    After all the largest produce of the coming years will have to be Tax Farming.

  3. Patrick, I take your point to be that virtually no one in the general public knows or cares about commerce clause jurisprudence. But believe me, it is a big deal in legal circles. Here is a bit of a talk I gave to business and other leaders back in aught-seven (or at least a bit from my notes, I don’t remember what I actually said):

    The entire legal argument [as I recall, I was discussing a particular controversy over pay day lenders objecting to state by state regulation] is based upon what lawyers and courts call the “dormant commerce clause” or the “negative commerce clause.” Federal courts have “invented” this clause because it does not actually appear in the constitution.

    Nationalized business interests have always pushed the dormant commerce clause because it has been an easy way to invalidate state laws regulating business, however, it is a devil’s bargain because in the process it hands the entire regulatory apparatus to the federal government. Federalists have long been concerned with abuses of the commerce clause, and abuses related to the dormant commerce clause have been the worst. Most telling is that the Justices who have the greatest respect for the constitution have consistently ruled against large corporate interests in these kinds of cases. (Of note, many dormant commerce clause cases have been used as bludgeons against local business interests who are “protected” by state commerce regulation.) The legal rational used in this line of cases has been driven by the ideologically leftist/centralizing judiciary, and even if in a particular instance it might be tempting for local business to adopt this line of thinking, in the end, it will harm your mutual interests.

    By way of example, the most recent Supreme Court decision on the dormant commerce clause (United Haulers case decided earlier this year) produced stinging dissents from both Thomas and Scalia. Both wrote opinions in that case decrying the use of the dormant or “negative” commerce clause to invalidate state laws. Here’s Thomas:

    “The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice. As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.”

    Here’s Scalia:

    “I write separately to reaffirm my view that “the so-called ‘negative’
    Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.”

  4. Caleb,
    Indeed, I meant to emphasize that Commerce Clause jurisprudence and its implications are virtually unknown to most average Americans – even those who hold strong views for or against “judicial activism.” If we take Sarah Palin to be somewhat representative of the average person’s knowledge of case law, her inability to respond to Katie Couric’s question whether there was a case other than Roe v. Wade to which she was opposed, reflects a reigning ignorance about this hugely important prevailing understanding of the Constitution. Imagine if she had been able to answer “Wickard v. Filburn” – and the national conversation that might have been sparked by that one answer…

  5. Patrick- As an aside, if you’re interested in good writing about tobacco road/set among tobacco farms, you might check our Ron Rash’s “The World Made Straight.”

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