63 Pages Posted: 16 Jan 2011 Last revised: 7 Jun 2012
Date Written: January 13, 2011
This article provides a new theoretical account of dormancy, one of the oldest and most controversial concepts in American constitutionalism. Despite familiar and repeated scholarly claims that the dormant commerce clause, dormant admiralty clause, and dormant foreign affairs doctrines are unjustifiable, dormancy has been with us since the beginning and exists in several doctrinal instantiations today. Criticism of these dormancy doctrines - now nearly canonical - has proceeded, surprisingly, without a clear picture of its target. Conventional views tend to assume that the various dormancy doctrines are conceptually distinct from each other and that they are solely concerned with guaranteeing the unencumbered exercise of federal power or, in the case of the dormant commerce clause, perhaps with guaranteeing the unencumbered functioning of market forces. Against these assumptions, this article’s thesis is that all dormancy doctrines may be viewed as implementing a single implied constitutional preclusion of state action that interferes with the constitutional structure; and their differences may be attributed to instrumental reasons for enforcing that preclusion with varying degrees of stringency in different contexts. This long-overdue examination of the general concept of dormancy sheds new light on an old, much disparaged, misunderstood, yet enduring and important feature of our constitutional system. A unifying account of dormancy doctrines will enrich our general understanding of constitutional practice, demonstrate why conventional assumptions about dormancy are incorrect, and provide new leverage on some intractable theoretical debates about preemption, federalism, and federal common law. Against dormancy’s critics, I establish the foundation of a new normative case for dormancy doctrines and demonstrate their value for a robust and enduring constitutional structure.
Keywords: Constitutional law, constitutional theory, dormant commerce clause, constitutional doctrine, admiralty, federalism, separation of powers
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