Political Rivalries Among the States, Incommensurability, and the Dormant Commerce Clause

Abstract

Whether they explicitly recognize it or not, the courts are often confronted with problems of basic value incommensurability. Courts should recognize that whatever the nature of the incommensurability in any given case, some case rationales and outcomes will almost invariably be more reasonable, less arbitrary, and more jurisprudentially defensible than others. There are some cases of incommensurability in which the court should stay its hand. But there are certainly other cases in which the courts should be more assertive. Prime examples of the latter involve dormant commerce clause cases in which states adopt non-discriminatory rules intended to coerce producers in other states to adopt political, moral, and cultural policies favored by the regulating state. If courts do not work their way past the incommensurabilities in such cases, there is a likelihood of, ultimately, broadly unattractive practical consequences.

Keywords: dormant commerce clause, incommensurability, federalism, polarization

JEL Classification: K10, K20, K30