The American Common Market
105 Pages Posted: 15 Aug 2006
Date Written: October 15, 2006
Through various provisions, most notably the dormant Commerce Clause, the United States Constitution commits the United States to a common market system. The nature and scope of the American common market, however, has been incompletely - and, at times, inconsistently - described by the Supreme Court, which has led to widespread criticism of the Court's use of the dormant Commerce Clause to limit state regulatory and tax authority. This article provides an original, normative justification for the dormant Commerce Clause and a comprehensive framework for reviewing state regulatory and tax measures that impact interstate trade. As I argue, the central constitutional commitment is one of deliberative equality - that is, states and localities may regulate or tax interstate trade if and only if the state or local government gives equal regard to similarly situated in-state and out-of-state interests burdened by the regulation or tax. Deliberative equality best accommodates the competing values of state regulatory autonomy and open market access by requiring states, to the extent they wish to regulate interstate commerce, to adopt the same nation-regarding attitude the Framers expected of Congress. Moreover, not only does deliberative equality provide a compelling normative foundation for the American common market, it best explains and accounts for the Court's two-tier dormant Commerce Clause doctrine, which prohibits protectionism and requires a reasonable degree of regulatory and tax harmonization.
Keywords: Common market, dormant Commerce Clause, protectionism
JEL Classification: F1, F4, H71, K20, K22, K34
Suggested Citation: Suggested Citation