Dormant Commerce Clause

• Author: Julian N. Eule
• Pages: 804-806

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The Constitution does not explicitly restrict STATE REGULATION OF COMMERCE. While the COMMERCE CLAUSE of Article I authorizes congressional displacement of state commercial regulation, the constitutional text is silent regarding the residuum of power left to the states where Congress has not acted. It has long been accepted, however, that the mere grant of authority to Congress?even if unexercised?implies some restrictions on the states. A panoply of terms is applied to this constitutional implication. Among the most popular are the "negative commerce clause" or the "dormant commerce clause."

Surprisingly there was little discussion at the CONSTITUTIONAL CONVENTION OF 1787 on the subject of free trade. Consequently, the Supreme Court felt obligated to justify the implied limitation on the state by reference to the events that precipitated the call for a convention rather than to what transpired at the gathering. The ARTICLES OF

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CONFEDERATION era was marked by commercial warfare between the states. The resulting barriers to national trade, which threatened the vitality and peace of the Union, are often viewed as a primary catalyst for the Convention of 1787.

Judging from the constitutional language alone, one might conclude that the Framers left protection of national trade to congressional supervision rather than judicial enforcement. This expectation, however, does not appear to have been the vision of the principal Framer. JAMES MADISON anticipated that competing economic interests would neutralize each other in Congress and prevent the enactment of national regulation of interstate trade. The commerce clause, explained Madison in a letter written a half-century after the Constitution's drafting, would act "as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government." Under Madison's impasse theory, Congress would be unable to act because of political impediments, and the state would be powerless to act because of limited authority.

Madison's theory did not address the question of who was to bring the states back in line when they transcended their authority. Logic pointed to the courts. If Congress were paralyzed in the face of potent and conflicting local interests, only the courts could protect the national interest in free trade. Few expressed this sentiment better than OLIVER WENDELL...