Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
The Dormant Commerce Clause and the Exclusive Commerce Power
Mike Ramsey has another post about the Dormant Commerce Clause (DCC), following up on my previous post and this post by Mike Greve. Mike Ramsey attempts to set forth the strongest arguments against the DCC, with which I agree. There is no good original meaning argument for the DCC.
There is, however, a somewhat stronger argument for an exclusive Commerce Power. Unlike the DCC, one could conceivably conclude that the Commerce Clause provides exclusive authority to the federal government to regulate interstate commerce. That would differ from the DCC because the exclusive authority would take away from the states all authority to regulate interstate commerce, not just the power to discriminate against interstate commerce.
While Chief Justice Marshall toyed with this argument, and there us something textually to be said for it, I still don’t think it works for three reasons. First, the Commerce Clause does not say that it is exclusive and one would not normally infer from the language that the power was exclusive. Second, as Mike Ramsey notes, the Constitution seems to provide for exclusive power by doing so expressly, as when it states that Congress shall have the power “to exercise exclusive legislation in all cases whatsoever” over the District of Columbia. Third, the Constitution seems to recognize that the states can pass laws involving interstate and foreign commerce, as it provides that “no state shall, without the Consent of the Congress, lay any Imposes or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws” (although there is a complicated counterargument involving this provision).
It is too bad that Congress does not have the exclusive commerce power, because I believe it would be better than the original meaning. An exclusive power would make it less likely that the states would have agreed to the New Deal expanded, concurrent commerce power. Thus, the exclusive power would have been unlikely to have been expanded into the broad scope that the current commerce power has. With a more limited scope, the federal government would have limited authority, as would the states. There would not be two governments exercising the same authority and neither would have complete power to create cartels. This arrangement came close to being followed in the pre New Deal era, when the Court came pretty close to recognizing a limited federal Commerce Power that was largely exclusive. But it is now, sadly from a policy perspective, gone with the wind.