Why the Privileges and Immunities Clause of Article Iv Cannot Replace the Dormant Commerce Clause Doctrine
32 Pages Posted: 21 Dec 2003 Last revised: 2 May 2008
Critics of the dormant Commerce Clause doctrine (DCCD), the judicially-created limitations on states' regulation of interstate commerce, have advocated replacing the DCCD with the Privileges and Immunities Clause of Article IV, Section 2 as the constitutional bulwark against interstate commercial discrimination. Academic critics of the DCCD such as Julian Eule and Charles Black urged that the Privileges and Immunities Clause be substituted for the DCCD, as have conservative jurists, like Justice Scalia. But none have considered in detail the consequences of making such a substitution.
I argue here, however, that the substitution of the one for the other entails sacrificing substantial protection for interstate commerce against state discrimination because the Privileges and Immunities Clause does not apply to corporations and would not invalidate facially-neutral state statutes that nevertheless discriminate in their effects. In addition, the unavailability, under the Privileges and Immunities Clause, of certain exceptions to the DCCD (like the market-participant exception and Congress' redelegation power) would limit states and Congress to a greater degree than does the DCCD. Remedies for the shortcomings of the Privileges and Immunities Clause, I argue, would come at the expense of the alleged advantages of abandoning the DCCD for the Privileges and Immunities Clause in the first place, i.e., that Article IV, Section 2 is textually-based, would cabin judicial discretion in its application, and that its historical pedigree is superior to that of the DCCD.
JEL Classification: K00, K39
Suggested Citation: Suggested Citation