The Dormant Commerce Clause Doctrine and Constitutional Structure

Abstract

Critics of the dormant Commerce Clause doctrine, which restrains states from discriminating against or otherwise impermissibly burdening interstate and foreign commerce, often invoke the Federalist No. 32 - in which Alexander Hamilton explained which powers in the Constitution were exclusive to the federal government, and which would be exercised concurrently with the states - as proof that the doctrine has no basis in either constitutional text or history. In this essay, Brannon P. Denning argues that these critics' reading of Federalist No. 32 is too narrow, and overlooks the structural arguments Hamilton suggests (though he does not detail) in favor of implied restraints on the exercise of state power. Moreover, Denning argues that these structural arguments were developed in two important cases that critics of the dormant Commerce Clause doctrine never discuss, McCulloch v. Maryland and Cooley v. Board of Wardens. The cases, and the broader reading of Hamilton's analysis, Denning concludes, provide a firm structural basis for the dormant Commerce Clause doctrine, one not dissimilar from the structural bases cited by the Supreme Court as the foundation for its recent decisions on sovereign immunity. It is ironic, Denning notes, that the Court's vocal proponents of that non-textual doctrine are among the dormant Commerce Clause doctrine's most strident critics.

Keywords: Dormant Commerce Clause, Commerce Clause, Constitution, structural interpretation, Scalia, Thomas, Federalist, Cooley, McCulloch