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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).



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