[Retric]

> Filburn did not participate in any market at all

You missed the nuance here. Growing alone didn’t make him a participant, his use made him part of the demand for a commodity.

That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation

Thus if he had been growing wheat as practice or for the artistic value without using it then he would not have been considered as influencing the market.

[ndriscoll]

I'm not missing that nuance. My examples are making reference to that. Like I said, their argument can be made about literally anything at all. Make a completely private intimate recording with your spouse for your personal use? That affects the national market for pornography by reducing your demand, and the exact same reasoning would claim that the commerce clause grants the federal government authority to regulate it. Hosting a house party and want to play a flute that you literally carved out of wood that you produced on your land? That reduces demand for streaming platforms, and musicians are struggling so the government has a right to prop up their market and make it illegal for you to provide music services yourself. Want to install solar panels on your land? Now you're not participating in energy markets, so it's interstate commerce. Build a home by hand out of compressed earth dug up on site? The extra thermal mass and insulation reduces your demand for energy from interstate markets vs. usual construction methods. Interstate commerce. Plant a shade tree on the south side of your land or install awnings on your south windows? Reduced energy demand. Interstate commerce. Grow tomatoes or raise chickens for eggs in your backyard? Pretty much exactly analogous to Wickard. Interstate commerce. Capture and filter rainwater or drink municipal tap water? Reduced demand for bottled water. Interstate commerce. Have a horrible terminal disease and want to be allowed to die? Reduced demand for all sorts of things (including food and energy). Interstate commerce. The absence of demand for something because you did it yourself doesn't make you a market participant. It makes you not a market participant. Providing for yourself is part of your inalienable right to life.

[Retric]

> Make a completely private intimate recording with your spouse for your personal use?

Wheat is a commodity, works are art are not. So even just the first example you used doesn’t apply. We’ve specifically brought up multiple classes of exceptions on this thread and you added another one.

I suggest you read this before trying to come up with examples. https://en.wikipedia.org/wiki/Commodity

[ndriscoll]

Whether a good is fungible is a a subjective thing. Would the wider market consider your private recording as fungible among all of the other recordings out there? Almost certainly yes. In any case, it would certainly meet the threshold for affecting interstate commerce that Wickard started, which does not require you to be interacting with commodities markets specifically. The meaning of that was almost unlimited for a long time after Wickard. It took 53 years to finally decide that something was not interstate commerce: existing near a school in possession of a gun, and that was a 5-4 decision. The dissenting opinion postulated that gun violence in schools has a substantial effect on the job market because employers view education as important, and existing in possession of a gun near a school could affect gun violence in schools. This very nearly won out as an argument. You can't make this stuff up it's so ridiculous.

The court actually affirmed 6-3 in 2005 that Congress can regulate home-grown marijuana for personal consumption because of its possible effects on demand within a market that it is federally illegal to participate in. Because some people make illegal trades, even if you are a law-abiding citizen and never would, you apparently affect interstate commerce by following the law and growing your own (in a state where doing so is legal). Absolute trash ruling by a clown court. Directly based on Wickard.

When you look at the whole framework/design of the US government, it's obvious that Wickard was a garbage ruling and that they had at that point completely capitulated to FDR, who we recall had threatened to pack the court if they didn't start giving him carte blanche to do whatever he wanted. FDR wants unlimited authority to do anything? Commerce clause suddenly means Congress can regulate anything which could possibly (even in a counterfactual universe) involve a casual chain where someone interacts with something that interacts with something that eventually at some point in the chain could have crossed state lines.

[Retric]

> Whether a good is fungible is a a subjective thing.

It’s a continuum, but not particularly subjective. The degree to which something is an equivalent good depends on how people treat the item in question.

They may both be religious books but I doubt you’d find many people ambivalent if they are buying a Bible or Quran. They evaluate a used car based on mileage, but people are far more picky about content.