Confederation-Era Discrimination Against Interstate Commerce and the Legitimacy of the Dormant Commerce Clause Doctrine

57 Pages Posted: 13 Sep 2004

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law


It is an article of faith among critics of the dormant Commerce Clause doctrine (DCCD) that it is utterly lacking in textual or historical support. Critics argue that (1) the doctrine has no textual foundation; (2) there is no indication that the Framers intended the Court to read into the positive grant of power to Congress any implicit, judicially-enforceable restrictions on states; and (3) if indeed such restrictions were intended, they were not widely understood to be there; for if the public were to have had such an understanding it would have revolted against such a bold restriction on state power. Some critics have been so bold as to suggest that the doctrine's provenance is so questionable that the Supreme Court ought to abandon it once and for all.

An even stronger version of this argument tracks a long-running dispute among historians regarding the degree to which states actually discriminated against one another during the Confederation Period. Revisionist historians denied that any appreciable discrimination took place; and asserted that states were actually cooperating with one another, contrary to the standard account holding that a shooting war would have erupted from various commercial disputes among the new states. Strong critics of the DCCD argue that this historical evidence shows the DCCD to be nothing less than a constitutional fraud.

In this work, I will demonstrate (1) that fears of present and future disputes among states over interstate commerce occupied the minds of the Framers who saw the need for locating the power to regulate interstate commerce in Congress; (2) that this discrimination was not the product of the fevered imagination of nationalist bent on reining in the states, but that it really existed, and showed no signs of abating on the eve of the Philadelphia Convention; (3) that the abuses of the Confederation Era were specifically addressed in the text of the Constitution; and (4) that the text of the Constitution and the history surrounding its adoption furnishes an ample textual and historical basis for much of the DCCD as it has developed.

Keywords: Articles of Confederation, commercial discrimination, Constitution, Commerce Clause, dormant commerce clause doctrine, Madison, Critical Period, Merrill Jensen, William Zornow

JEL Classification: K00

Suggested Citation

Denning, Brannon P., Confederation-Era Discrimination Against Interstate Commerce and the Legitimacy of the Dormant Commerce Clause Doctrine. Available at SSRN: or

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

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