New York University Law Review
Richard B. Collins, Economic Union as a Constitutional Value, 63 N.Y.U. L. Rev. 43 (1988), available at https://scholar.law.colorado.edu/articles/944.
Professor Collins presents an in-depth defense of the dormant commerce power doctrine. He maintains that the text of the commerce clause, the original intent behind it, and a century of congressional acquiescence to broad judicial enforcement of the dormant commerce power lend sufficient legitimacy to the doctrine to support its continued existence. After examining the textual and historical bases for the doctrine, Professor Collins concludes that the primary purpose behind the commerce clause is the promotion of economic integration and interstate harmony. Based upon his discussion of the doctrine's origins and development, he contends that critics of the doctrine who would inject personal rights jurisprudence into dormant commerce power analysis are misguided. The doctrine aims at protecting economic union, not personal rights. Given this purpose, political process and legislative motivation theories do not present compelling cases for doctrinal change or abolition. Until challengers can show that the Court's promotion of economic integration does not achieve net political and economic gains, the doctrine should be employed to achieve those ends.
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