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Judicial Activism

Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning. As such, activism does not mean the mere act of striking down a law.

Wickard v. Filburn


In a unanimous decision, the Court ruled that, under the Commerce Clause, the federal government has the power to regulate the amount of wheat grown by a farmer for use on his own farm as interstate commerce, despite the fact that the wheat was never sold and never crossed state lines.


This case is activist because the Supreme Court strained theplain text of the Constitutionto achieve a desired end, bending terms to the point of breaking. The Commerce Clause states that “Congress shall regulate commerce… among the several States…” In Wickard, the Court extended this to include any action that “exerts a substantial economic impact on interstate commerce,” regardless of how direct or indirect that impact may be. This relies upon the adoption of the aggregation principle: “taken together with that of many others,” an individual’s small production of wheat for home consumption could affect the federal government’s delicately balanced price-fixing system. On this possibility alone, with no evidence of any actual interstate effect, the government could prevail.

Wickard rendered a nullity the Constitution’s enumeration of the federal government’s limited powers. With just one of those powers, that to regulate commerce “among the states,” it could reach any conduct at all. The result has been massive federal intrusion into all aspects of life, in direct contravention of the Framers’ vision.

Case Basics


Court & Reporter NumberSupreme Court, 317 U.S. 111

Type(s) of Activism
  • Contorting Text
Area(s) of law
  • Federalism
  • Hugo Lafayette Black
  • James Francis Byrnes
  • William Orville Douglas
  • Felix Frankfurter
  • Robert Houghwout Jackson
  • Frank Murphy
  • Stanley Forman Reed
  • Owen Josephus Roberts
  • Harlan Fiske Stone