December 2011, Volume 97, Issue 8
A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause
by Barry Friedman and Daniel T. Deacon
97 Va. L. Rev. 1877 (2011)
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The dormant Commerce Clause, though a longstanding feature of American constitutional law, is of dubious legitimacy. Or so some argue (and many have come to believe). The Clause is the target of frequent attack by justices and commentators, usually of an originalist bent. They claim the Clause is without textual support, has “no basis” in Founding-era history, and is the platform for an unjustified intrusion of the federal judiciary into the affairs of the states.
But they’re wrong. This Article provides a comprehensive response to the dormant Commerce Clause Skeptics from an historical and originalist perspective. Far from lacking legitimacy, the Clause has deep roots in Founding history. It addresses one of the central problems that drew the Framers to the Philadelphia Convention, and it employs the very device for reviewing state legislation the Framers preferred, judicial review. From a historical perspective, the Court’s modern dormant Commerce Clause doctrine is actually far more respectful of state authority than the understanding of the Clause likely held at the time of the Framing. But looking with presentist eyes, the Skeptics miss this entirely. The story of the dormant Commerce Clause is one of many twists and turns, nearly inscrutable doctrine, and political manipulations. But no matter what other problems the doctrine may suffer, its fundamental legitimacy is not among them.
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