Over at originalismblog, Mike Ramsey has a generous, fair-minded, but critical comment on my most recent musings about the “dormant” Commerce Clause and modern-day originalists’ resistance to the notion. He’s entirely right that my blog post doesn’t do enough to defend the dormant Commerce Clause, and he raises the right sort of textual and structural objections.

The Upside-Down Constitution contains an extended defense of the doctrine on what I think are originalist grounds. Today, though, something completely different—a consequentialist point that, I think, conservatives and libertarians haven’t considered sufficiently.

Where does the “dormant” Commerce Clause—i.e. the notion that the clause of its own force forbids certain state interferences with interstate commerce even when Congress hasn’t said a word—come from? Historically, there have been two candidates. One, the silence of Congress signals a congressional “will” that commerce should remain untrammeled. Few think that the Constitution has much room for an unenacted will of Congress as source of legal authority, and I’m not among those few. Two, the congressional power to regulate commerce is exclusive (in toto, or over some range). There’s a potent originalist argument to that effect, but it’s very, very difficult.

Put the question aside, and ask: What happens if the commerce power isn’t exclusive? The answer is that the constitutional distinction between commerce among the states and commerce within the states threatens to collapse, in a disturbing way. There is no commerce among states that doesn’t occur someplace, and that someplace has to be a state. So, once you ask how much interstate commerce the states can regulate under a non-exclusive Commerce Clause, the answer is: all of it. The idea of separate federal and state “spheres” has gone to heck—not because some New Deal genius decided Wickard v. Filburn but because—on a non-exclusive understanding of the Commerce Clause—the Constitution itself doesn’t recognize such spheres.

To complicate matters further: because commerce among the states of needs begins and ends somewhere, each transaction implicates at least two states—both of which can claim jurisdiction. Someone has to sort out the conflicts and the overlap. Historically, that was a crucial point of the dormant Commerce Clause: in many cases (though far from all), it allowed the Court to assign tax and regulatory authority to a particular state and, ideally a single state. Without the doctrine, multiple, overlapping and conflicting impositions on interstate commerce are bound to multiply. No state has any incentive to take the overall effects into consideration, so the compounding taxes and regulations are bound to take on a very protectionist and exploitative coloration.  That, in a nutshell, is our current situation.

Several responses are possible. One, you could say that regulatory cascades—both vertically and horizontally—are good, because more regulation is ipso facto better regulation. (“Polyphonic federalism” scholars defend this view, and it’s embedded in many federal statutes.) Two, you could say that the situation is highly unproductive but alas, the Founders gave us an unworkable constitution: their bad. Three, you could say the situation is fubar but that under the Constitution, Congress and it alone must provide relief. That, by and large, has been the post-New Deal Court’s position, to this day. My answer is, dream on. Four, you could say that state domination over the commerce of the United States cannot possibly be what the Founders had in mind and, moreover, that they knew that Congress would rarely provide effective relief. (They said it often enough.)

If that’s your position, you can do one of two things: operate with what has come down to us as the “dormant Commerce Clause”; or else, ramp up the specific prohibitions against the states (such as the Privileges and Immunities Clause, mentioned by Mike Ramsey; or the Article I Section 10 injunction against import taxes), to the point where they can do the work of a robust dormant Commerce Clause—to wit, afford protection to all actors in interstate commerce against discriminatory and exploitative state taxes regulations.

Those are the options. I don’t see any others.