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A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause

63 Pages Posted: 12 Jan 2012 Last revised: 17 Feb 2012

Barry Friedman

New York University School of Law

Daniel Deacon

University of California, Irvine School of Law

Date Written: January 11, 2012

Abstract

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.

Suggested Citation

Friedman, Barry and Deacon, Daniel, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause (January 11, 2012). Virginia Law Review, Vol. 97, p. 1877, 2011; NYU School of Law, Public Law Research Paper No. 12-01. Available at SSRN: https://ssrn.com/abstract=1983353

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Daniel Deacon

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Irvine, CA California 92697-1000
United States

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