ArtI.S8.C3.7.2 Historical Background on Dormant Commerce Clause

Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

The Supreme Court has long rooted its Dormant Commerce Clause jurisprudence in historical circumstances, characterizing the doctrine as a response to the state barriers to trade that served as an impetus for developing a new Constitution.1 Under the Articles of Confederation, Congress lacked the authority to regulate interstate and foreign commerce.2 The Annapolis Convention of 1786 was convened out of a desire to remove the protectionist barriers to trade that some states had imposed.3 At the Philadelphia Convention in 1787, the Framers discussed Congress’s authority to regulate interstate commerce in the context of that goal.4

In the Federalist Papers, Alexander Hamilton and James Madison discussed the benefits of a free national market, such as improving the circulation of commodities for export to foreign markets, increasing the diversity and scope of production, facilitating aid between the states, and providing for more advantageous terms of foreign trade.5 They also warned that protectionism could lead to interstate conflicts.6

Despite these concerns, the Framers did not adopt a constitutional provision expressly addressing state and local regulations affecting interstate commerce. The Import-Export Clause provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws.” 7 That clause has not been held to apply to trade among the states, however.8 Similarly, in the Federalist No. 32, Hamilton asserted that the states’ taxing authority “remains undiminished” save for imposts or duties on imports or exports.9 He did not specify, however, whether Congress and the states also enjoyed concurrent power over interstate and foreign commerce. Instead, the Supreme Court has developed its Dormant Commerce Clause jurisprudence to serve as a limitation on some state regulations and taxes, and has linked that jurisprudence with the concerns and goals expressed by the various Framers.

See Tenn. Wine & Spirits Retailers Ass’n, 139 S. Ct. 2449, 2460–2461 (2019); see also Hughes v. Oklahoma, 441 U.S. 322, 325–326 (1979) (highlighting as the “central concern of the Framers . . . the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation” ). In Guy v. Baltimore, 100 U.S. 434, 440 (1880), the Court cautioned that state protectionist measures “would ultimately bring our commerce to that ‘oppressed and degraded state,’ existing at the adoption of the present Constitution, when the helpless, inadequate Confederation was abandoned and a National Government instituted, with full power over the entire subject of commerce, except that wholly internal to the States composing the Union.” back
The Federalist No. 42 (James Madison) (discussing “[t]he defect of power in the existing Confederacy to regulate the commerce between its several members” ). back
Max Farrand, The Framing of the Constitution of the United States 7–10 (1913); Brandon P. Denning, Confederation-Era Discrimination Aginst Interstate Commerce and the Legitimacy of the Dormant Commerce Clause Doctrine, 94 Ky. L.J. 37, 49–59 (2005). back
James Madison, Notes of Debates in the Federal Convention of 1787, at 14 (Ohio University Press 1966) (1840) ( “The same want of a general power over Commerce, led to an exercise of the power separately, by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations.” ); see also Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 470–471 (1941). Later in life, James Madison stated that the power had been granted to Congress mainly as “a negative and preventive provision against injustice among the states.” 4 Letters and Other Writings of James Madison 14–15 (1865). back
For example, in the Federalist No. 11, Hamilton argued: “An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States.” back
Madison wrote in the Federalist No. 42 that, if the states regulated interstate trade, “it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisiction, with duties which would fall on the makers of the latter and the consumers of the former.” back
U.S. Const. art. I, § 10, cl. 2. back
Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869). But see Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 449 (1827) (noting that “the principles laid down in this case [regarding the Import-Export Clause] . . . apply equally to importations from a sister state” ); Comptroller of Treasury of Md. v. Wynne, 575 U.S. 542, 570 (2015) (noting “the close relationship between” the Export-Import Clause and the Dormant Commerce Clause). back
The Federalist No. 32 (Alexander Hamilton). back