Wickard and rational basis deference

[DavidEBernstein at aol.com]

The fact that W v. F was decided during WWII, with, as Mary Dudziak points 
out (below) a military needs subtext, strikes me as very strong evidence against 
Bruce Ackerman's thesis that the American people endorsed the totality of the 
New Deal constitutional revolution.  I wonder if the case even made it beyond 
the back pages of the newspapers, given what else was going on.


This doesn't really get to Mitch's point, but in my view the real key to 
Wickard is the speech given by Secretary of Agriculture Wickard, which helped lead 
to farmer Filburn's confusion about the rules:  "Wheat Farmers and the Battle 
for Democracy."  England was a wheat importing country and U-boats were 
patrolling the waters.  Churchill & FDR were involved in wheat talks.  Farm 
products, including wheat, were seen as crucial to the war effort.  So....it seems 
not so surprising that such a federalism rollback happens in a case like 
Wickard, which turns out to be a case about national security.

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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