Originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell.
Just saying “dormant commerce clause,” makes the eyes start to glaze. Despite its boring label, it is perhaps the most important judicial doctrine most people have never heard of. Outside those sections of the U.S Constitution where it expressly prohibits states from enacting certain types of laws (most notably in Article 1, Section 10), we typically think Congress needs to enact legislation to preempt contradictory state laws. But in a long line of cases spanning almost 200 years, the U.S. Supreme Court has interpreted the power to regulate interstate commerce, delegated to Congress in article 1, section 8, as containing an exclusive grant of power to Congress. Under this doctrine, U.S. courts have struck down multitudes of state laws regulating or burdening of interstate commerce as unconstitutional even though those states laws do not contravene or contradict any act of Congress.
It sounds boring and technical. (Or technical and therefore boring.) Here’s the non-boring upshot, though: The doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S. The same outcome almost certainly would not have occurred if the matter had been left to Congress.
The reason results from differing institutional attributes of legislatures and judiciaries. People must persuade Congress to act. That requires an investment of time and resources, requires coordinated activity among numerous citizens and groups, and requires competing with other people and groups for Congress’s time and attention. If a state adopts a law discriminating against interstate commerce, it would take time and resources to get the matter on Congress’s agenda, let alone getting Congress affirmatively to forbid the type of law the state enacted.
In contrast, however, a single person being hurt by a state law discriminating against interstate commerce can get a judge to act. While lawsuits are not necessarily cheap, they can be significantly cheaper than the corresponding investment it would take to get Congress to act.
So authorizing judges to strike down state laws burdening or discriminating against interstate commerce is a far more effective means of protecting free interstate commerce than leaving its protection to Congress.
But while hugely important for American economic development, the doctrine is not without its controversies and puzzles.
The most obvious problem with the doctrine is the constitutional basis for judicial action. After all, a power granted to Congress to act if and when it chooses to act does not necessarily imply a power for judges to act when Congress has in fact not chosen to act.
The traditional argument for the dormant commerce clause is that delegation to Congress of power to regulate interstate commerce is an exclusive grant of power. States then unconstitutionally intrude on what the Constitution exclusively delegates to Congress when they attempt to regulate interstate commerce. Textually persuasive? Eh . . .
Relatedly, dormant commerce clauses decisions by the courts are constitutional decisions that can nonetheless be overturned by a simple majority vote of Congress. This has been approved by the courts.
Here’s the sequence. The U.S. Supreme Court decides that state laws of a certain sort constitute regulations of interstate commerce and are therefore unconstitutional. In response, Congress adopts a law giving permission to states to adopt the type of law the U.S. Supreme Court declared unconstitutional. States then reenact exactly the same laws they had previously, and those laws are once again challenged all the way to the U.S. Supreme Court. The U.S. Supreme Court now rules that the laws are constitutional; the very same laws it struck down as unconstitutional in its earlier decision. The reason the Court gives for allowing this is that the power to regulate interstate commerce is given to Congress, and Congress decided that the means by which it will regulate interstate commerce is to allow the states to regulate interstate commerce.
There are two curiosities about this. First, in other areas, the Court does not allow Congress to delegate to other institutions powers that the Constitution exclusively delegates to Congress. Only Congress can exercise its exclusive powers. It seems a bit of legerdemain to suggest that Congress regulates interstate commerce by deciding to have the states regulate it instead.
Secondly, there is the interesting question of whether the Fourteenth Amendment might suggest analogous interplay between Congress and the Court. Section five of the Fourteenth Amendment expressly grants the power to enforce the Fourteenth Amendment to Congress, not to courts. While the modern Supreme Court has severely limited what it means for Congress to “enforce” the Fourteenth Amendment, and has claimed for courts most of the power to interpret and enforce the provisions, nonetheless, the language of section five invites the possibility that the Fourteenth Amendment could be applied by courts in a similar fashion to the dormant commerce clause.
Here would be the sequence. The U.S. Supreme Court interprets the Fourteenth Amendment to say one thing, striking down (or sustaining) state laws challenged under the Amendment. Congress responds under the power delegated to it by section five of the Amendment (under its exclusive enforcement power?), enacting a law stating the Fourteenth Amendment will be enforced in a manner opposite of the Supreme Court’s holding. The same state laws are relitigated up to the Supreme Court, which then overturns its earlier decision because of the congressional action.
There are numerous constitutional curiosities about the dormant commerce clause. As a historical matter, however, the doctrine has had, and continues to have, a profound effect on the development of the U.S. national economy and the country’s prosperity.