“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
Article I, Section 8, Clause 3 of the United States Constitution
Introduction
Since the early beginnings of the United States, the Commerce Clause of the Constitution has guaranteed Congress a significant role in the life of the nation. As such, the clause has also been widely argued about throughout different eras of American jurisprudence and through cases such as Gibbons v. Ogden and United States v. Morrison. Perhaps the most significant legal doctrine that underpins the Commerce Clause has been the Dormant Commerce Clause, or the "Negative Commerce Clause".
The Dormant Commerce Clause is a legal doctrine used to strike down state legislation that invokes protectionist measures against interstate commerce. In order to strike down such legislation under the Dormant Commerce Clause, state legislation must have discriminated against and created an undue burden on interstate commerce.
History of the Dormant Commerce Clause
The Clause originated with the famous Gibbons v. Ogden case in which Chief Justice John Marshall suggested that the power to control commerce “can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant”. While Gibbons might be the first case involving the mention of dormancy, the "birth" of the Dormant Commerce Clause is first seen in the case of Willson v. Black Bird Creek Marsh Co. in which Delaware state law authorising the construction of a dam was permissible due to the ability of the Delaware legislature to regulate commerce “in its dormant state”.
These two cases stand as the origin of the Dormant Commerce Clause but judicial review was not exercised to strike down state laws that violated the Dormant Commerce Clause until 1872 in Reading Railroad Company v. Pennsylvania. The Clause was expanded in the 20th Century in the cases of Pike v. Bruce Church, Inc. and Minnesota v. Clover Leaf Creamery to include the current undue burden and discriminatory standards against interstate commerce.
The aforementioned history of the Dormant Commerce Clause as a judicial creation is important when examining the claim made by originalists that the Dormant Commerce Clause is simply not in the Constitution, nor should it be inferred, as a matter of judicial principle, from the existence of the Commerce Clause.
Originalists notably rely on the theory that the Constitution should be read in accordance with the original understanding at the time of adoption. With this in mind, some originalists argue that the Dormant Commerce Clause simply cannot be inferred from the Constitution as there is no text within the Constitution itself to suggest that the doctrine exists.
An example of this thinking is demonstrated by Justice Clarence Thomas, in Camps Newfound/Owatonna, Inc. v. Town of Harrison, who states that the “negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application”. With a Supreme Court composed primarily of originalists and textualists, it is necessary to consider the possibility for the originalists to maintain Dormant Commerce Clause precedent while also remaining consistent with their originalist philosophy.
Toward a Reconciliation
The first way of reconciling originalism with the judicially-created Dormant Commerce Clause is to consider whether the original intent of the Framers includes preventing “economic Balkanization that had plagued relations among the Colonies and later among the States” as Justice Brennan writes in Hughes v. Oklahoma. The Dormant Commerce Clause may be inferred in a similar way to judicial review - the Supreme Court expanded on judicial review in Marbury v. Madison in accordance with the structure of the Constitution and balance of powers.
Alexander Hamilton, in Federalist No. 22, feared that the States, if not restrained by the federal government “would be multiplied and extended till they become not less serious sources of animosity and discord”. This includes economic protectionism between the States, as James Madison states: “The practice of many States in restricting the commercial intercourse with other States [...], is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations". By looking through the lens of Hamilton and Madison, there appears to have been at least some original intent among the most influential Framers of the Constitution to prevent the States from creating using protectionist measures against each other.
The second, and perhaps more important, method of reconciliation would be reconsidering the underlying relationship between originalism and precedent. John McGinnis and Michael Rappaport offer a theory of originalism that maintains well-established precedents, even when they conflict with the original meaning of the Constitution. McGinnis and Rappaport argue that originalism benefits individuals as a consequence of a fixed and continuous basis for interpreting the Constitution but they also hold that society has become reliant on precedents which would be considered wrong by originalists. There are certain judicial precedents that have a universal consensus in American society (a supermajority) to the degree that they have become “entrenched” in a manner that overturning them would create negative societal consequences. The famous cases of Miranda v. Arizona and the Legal Tender Cases are held to be important decisions that affect the lives of all Americans, yet they would be considered erroneous if decided through original meaning or original intent. However, with the ‘supermajoritarian’ theory of McGinnis and Rappaport, these cases would simply be upheld as significant judicial precedents.
When applied to the Dormant Commerce Clause, the importance of Supreme Court precedent to the economic life of the nation is clear: suddenly allowing state protectionism by overturning the Dormant Commerce Clause would prove harmful to thousands of businesses that rely on interstate commerce, and their customers. The theory introduced by McGinnis and Rappaport would prevent economic protectionism between the states and the possible retaliatory measures they would place on each other.
Conclusion
For the time being it is uncertain whether the Court will choose to uphold the Dormant Commerce Clause in cases that challenge protectionist laws made by the states. Despite the current dominance of originalists on the Court, and the risk the doctrine faces in light of that dominance, hopefully, the Court will continue to follow in the footsteps of the almost two centuries of historical precedent that have kept the doctrine alive. If not, the words of warning expressed by John Jay in Federalist No. 5 might just ring true: “Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations".