Private: In Clarence Thomas' America, There Is No Negative Commerce Clause

column by Ian Millhiser, Editor-in-Chief
Dissenting in Camps Newfound/Owatonna v. Town of Harrison, Justice Thomas stated that "[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application," thus suggesting that 150 years of Negative Commerce jurispudence should be overturned in a single swipe of the pen. Thomas' vote to overturn a century and a half of law not only undermines well established law, but it conflicts even with an originalist understanding of the balance between the federal government and the states.
Writing in the Federalist Papers, Alexander Hamilton warned of "the rivalships and competitions of commerce between commercial nations." Hamilton understood that commercial conflicts often ripen into bitter warfare, and so he called for a free trade zone amoungst the several states. "It has been the prudent policy of Congress," said Hamilton, "to appease this controversy, by prevailing upon the States to make cessions to the United States for the benefit of the whole."

The framers understood that by giving Congress the power to regulate trade amongst the states, they could prevent the kind of interstate conflict Hamilton warned about. Accordingly, they gave the federal government, and took away from the states, the power to "regulate commerce . . . among the several states."
On its face, this Commerce Clause speaks only with a positive voice, granting an affirmative power for Congress to create new laws which govern interstate commerce. Over 150 years ago, however, the Supreme Court recognized a "Negative" or "Dormant" Commerce Clause which prevents states from constructing undue burdens to commerce amongst the states. In Cooley v. Board of Wardens, the Court held that "the nature of the power" to regulate interstate commerce "requires that a similar authority should not exist in the States." Congress may delegate this power to the states, but the Constitution requires all laws regulating interstate commerce to arise from Congress, not the states.
The purpose of this negative voice is to prevent a single state from engaging in "economic protectionism," regulatory measures designed to benefit in-state economic interests at the expense of all other states. Without this Negative Commerce Clause, Wyoming could require all its electric plants to burn only Wyoming coal. Nebraska could tax all semi-trucks not registered in Nebraska. In fact it is the Negative Commerce Clause that prevents Virginia from enacting tariffs against goods imported from Tennessee. Without this limit on state power, one state, acting to advantage its own businesses, could set off a chain reaction of retalitory regulations until the United States were not "united" states in any real sense of the word.
To be fair, Justice Thomas does concede that the Constitution prohibits one state from imposing tariffs on another, but this is a far cry from the broad ban on protectionism created by the Negative Commerce Clause. In fact under Thomas' opinion in Town of Harrison, nothing in the Constitution prevents Virginia from banning the sale of all goods manufactured in Tennessee. Should an act of Congress be required to prevent this?
Should Thomas' vision in Town of Harrison become law, a 150 year-old balance of power would be upset. Justice Thomas claims this is necessary because no negative voice is apparent in the text of the Commerce Clause. Yet when state sovereign immunity was at issue in Seminole Tribe of Florida v. Florida, Thomas cast the decisive fifth vote in favor of sovereign immunity, even though sovereign immunity is no more textually apparent than the Negative Commerce Clause. Why non-texual rights are acceptable in a case which benefits states, but are not acceptable when states are restricted, is a mystery.