Dormant Commerce Clause: Does it really exist?

Personal jurisdiction involves numerous sections of the Constitution and obviously is complicated by the difficulty of establishing legal boundaries. Out of the cases and doctrine that revolved around boundaries this week, one area particularly troubled me. In striking down a New York law in American Library Association v. Pataki, the majority makes reference to the so-called “Dormant” Commerce Clause. Quite frankly, while I like the idea of this clause and see its potential efficacy, I am not sure where this doctrine comes from textually, if at all.

Practically, a Constitutional mandate like the Dormant Commerce Clause would serve a myriad of useful purposes. For instance, a clause like the Dormant Clause would be a “pro-business” clause that helped to maintain a prosperous and stable national trade system. Most notably, it would prevent states from internally enacting legislation and then effectively “outsourcing” that domestic legislation to other states. A Dormant Commerce Clause would stop states from burdening our system of interstate commerce through intrastate legislation.

I am very troubled, however, that this Dormant Commerce Clause even exists. I do not think that, based on the U.S. Constitution’s text alone, it is unequivocal that the Commerce Clause implies a negative converse. When Article I merely grants Congress the power “To regulate commerce… among the several states,” I hardly think that the text itself suggests a restriction prohibiting a state from passing legislation that may be prosecuted only intrastate, even if it burdens the interstate system. Surely the Framers believed that a state had the right to “regulate,” even when regulations were “non-competitive”?

Of course, a “burdensome” state regulation would likely place a state at a competitive disadvantage, so less people would want to live there or do business with it. This would be bad for business over the long run, so a state could not likely maintain unequal regulations. But I think that Constitution persevered some right for “states to be stupid."

In the case of the Internet, the Dormant Commerce Clause is even more socially and economically useful than ever before. Because people do not necessarily realize what states they are doing business with, they may not be able to knowingly avoid the “stupid” states with bad regulatory laws. That is one reason why the decision in American Library Association may make some sense.

However, while obviously legally and financially pragmatic, I remain deeply worried that the Dormant Commerce Clause type of jurisprudence has been invented over time instead of textually in the books. If the former is the case, then I think we ought to write new federal legislation or a Constitutional Amendment that explicitly makes clear the intent of the doctrine rather than rely on the legal ambiguity of the existing Commerce Clause.