The United States Constitution commits the United States to a common market system, yet, unfortunately, the nature and scope of the American common market have been incompletely — and, at times, inconsistently — described by the U.S. Supreme Court. This Article provides an original, theoretical account of the Court's commitment to national economic union. As I argue, the central constitutional commitment is one of deliberative equality — that is, states and localities may regulate or tax interstate commerce if and only if the government gives equal regard to similarly situated in-state and out-of-state interests burdened by the regulation or tax. Deliberative equality provides a powerful normative justification for the judicial review of state measures that inhibit interstate trade. Yet, at the same time, deliberative equality provides ample room for states to respond to public policy issues in divergent ways consistent with the desires of the local citizenry. In this way, deliberative equality offers a superior theoretical foundation than alternative theories embraced by the Court, which overemphasize either free trade or state regulatory autonomy. The relative superiority of deliberative equality and the defects in the alternative approaches are both illustrated by the Supreme Court's recent decisions involving the states' power to regulate commerce, which inject further confusion into an area already in need of analytical clarity. Reprinted by permission of the publisher.
Norman R. Williams,
The Foundations of the American Common Market,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol84/iss1/7