Is the Dormant Commerce Clause Judicially Created?

Charles Lincon
4 min readMar 19, 2023

Chiasmus about this post created by ChatGPT: “Is the Dormant Commerce Clause created by judges, or judged by creators?”

This is how St. Thomas Aquinas may have analyzed the question:

In considering whether the Dormant Commerce Clause is judicially created, we must first examine the nature of the Constitution itself. The Constitution is a foundational document that sets out the fundamental principles and structure of the American government. It is the supreme law of the land, and as such, it is the duty of the judiciary to interpret and apply its provisions.

Now, when we look at the text of the Constitution, we find no explicit mention of the Dormant Commerce Clause. However, we must not be led astray by the notion that the Constitution is limited only to what is explicitly stated. Rather, as St. Thomas Aquinas would argue, we must also consider the principles that underlie the Constitution.

One such principle is the idea that the federal government has exclusive authority over interstate commerce. This power is explicitly granted in the Commerce Clause of the Constitution. However, it is not enough to merely consider the text of the Constitution; we must also examine the context in which it was written.

When we look at the history of the Constitution, we see that the Founding Fathers intended for the federal government to regulate interstate commerce. In fact, they saw the regulation of commerce as a necessary means of promoting the economic interests of the nation. The Dormant Commerce Clause, which restricts states from interfering with interstate commerce, is therefore a logical extension of this principle.

Moreover, we must also consider the role of the judiciary in interpreting the Constitution. As St. Thomas Aquinas would argue, the judiciary is tasked with ensuring that the Constitution is faithfully executed. This includes not only the text of the Constitution, but also the underlying principles that give it meaning.

In the case of the Dormant Commerce Clause, the judiciary has played a vital role in upholding the principle of federal supremacy in matters of interstate commerce. By restricting the ability of states to interfere with interstate commerce, the judiciary has helped to ensure that the national economy remains strong and efficient. This is in line with the original intent of the framers of the Constitution, who recognized the need for a strong federal government to regulate commerce among the states.

Furthermore, the Dormant Commerce Clause has been recognized as an essential component of the constitutional structure since its inception. The Clause was not created by the judiciary out of thin air, but rather has its roots in the text and structure of the Constitution itself. The Commerce Clause of the Constitution explicitly grants Congress the power to regulate interstate commerce, and it is widely understood that this power is exclusive, meaning that states cannot regulate interstate commerce in a manner that conflicts with federal law.

In addition, the Supreme Court has repeatedly affirmed the existence and importance of the Dormant Commerce Clause, both as a matter of constitutional law and as a practical matter. The Court has held that the Clause is necessary to prevent protectionist state laws from interfering with the free flow of commerce among the states, and that it is essential to maintaining a level playing field for businesses operating in multiple states.

Therefore, it is clear that the Dormant Commerce Clause is not a judicial invention, but rather a necessary component of the federal system established by the Constitution. The judiciary has played a crucial role in upholding this principle, but it is ultimately grounded in the text and structure of the Constitution itself. Without the Dormant Commerce Clause, the national economy would be subject to inconsistent and potentially harmful state regulations, leading to decreased efficiency and increased costs for businesses and consumers alike.

Some Syllogisms:

Argument in favor of Dormant Commerce Clause as judiciary created:

Premise 1: The Dormant Commerce Clause is not explicitly mentioned in the Constitution.

Premise 2: The Supreme Court, through its power of judicial review, has interpreted the Commerce Clause to include an implicit limitation on state power known as the Dormant Commerce Clause.

Conclusion: Therefore, the Dormant Commerce Clause is a judiciary-created doctrine.

Argument in favor of Dormant Commerce Clause as inherent in the construction of the Constitution:

Premise 1: The Commerce Clause grants Congress the power to regulate interstate commerce.

Premise 2: The Framers of the Constitution intended to create a national market by giving Congress this power.

Conclusion: Therefore, the Dormant Commerce Clause, which prevents states from unduly burdening interstate commerce, is inherent in the construction of the Constitution as a means to preserve the national market envisioned by the Framers.

By — Me — Charlie Lincoln and ChatGPT.

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Charles Lincon

Renaissance literature, Shakespeare, Hegelian dialectics, Attic Greek, masters University of Amsterdam.