Document Type
Essay
Abstract
As states become dissatisfied with either the direction of federal policy or the
gridlock that seems like a barrier frustrating action, their disdain or impatience is
increasingly manifest in state legislative or regulatory efforts to reach big issues
normally reserved to federal resolution. Increasingly, such efforts to stake a position
on issues of national or international importance are testing the limits of state
autonomy within a system of federalism that includes robust protection for the free
flow of commerce among the several states.
This Essay provides the primary historical backdrop against which these
measures should be judged with a particular emphasis on the importance of
sustaining a national market for commerce within our system of federalism. Too
often state initiatives are framed in terms of “states’ rights” seeking to capitalize on
the rhetorical power that phrase offers. If the states are told they cannot do X or Y,
those who favor local control within our democratic republic find appealing
arguments that national policy preventing states from acting is excessive. When
states are told they cannot act alone, some may fear that the federal government is
becoming too big and controlling and become suspicious of the claim of state
disempowerment. But even those who favor localized control must be cautious in
advocating in favor of “states’ rights,” a concept that is often nothing more than a
siren song. Those rocky shores sometimes harbor positions that would allow states
to act in a manner that is quite contrary to perhaps the most important aspect of
American federalism embodied in the Constitution— the constitutional facilitation
of a national free trade zone known as the United States wherein each independent
unit is disabled from erecting barriers to trade under what is popularly termed the
Interstate Commerce Clause (although it may more appropriately be called the
Commerce Among the Several States Clause).
Recommended Citation
Donald J. Kochan,
The Meaning of Federalism in a System of Interstate Commerce: Free Trade Among the Several States,
95
Notre Dame L. Rev. Reflection
166
(2020).
Available at:
https://scholarship.law.nd.edu/ndlr_online/vol95/iss5/1