Federalism, Efficiency, the Commerce Clause, and the Sherman Act: Why We Should Follow a Consistent Free-Market Policy
Emory Law Journal
The focus of the dormant commerce clause is on free trade among the states. Indeed, the Supreme Court, borrowing from the vocabulary of European integration, frequently asserts that the dormant commerce clause calls for an American "common market." 1 Borrowing from the language of international trade, the Court invalidates state or local legislation which is "protectionist." 2 This focus is consistent with the purpose of the Framers, who sought to prevent economic barriers to trade from threatening the new political order established by the United States Constitution. Stated in a more positive vein, the free-trade objectives incorporated in the dormant commerce clause further the efficient allocation of resources within our society, just as free trade among nations helps to further the efficient allocation of resources in the world. The Court's use of the vocabulary of international trade is an implicit recognition of the efficiency objectives furthered by the dormant commerce clause.
Daniel J. Gifford, Federalism, Efficiency, the Commerce Clause, and the Sherman Act: Why We Should Follow a Consistent Free-Market Policy, 44 Emory L.J. 1227 (1995), available at https://scholarship.law.umn.edu/faculty_articles/320.