Criticism of The Doctrine
References in more recent Court decisions have argued that "Whether or not the Founders intended this "negative" or "dormant" component to the Commerce Clause has been hotly debated."
Both Supreme Court Justices Antonin Scalia and Clarence Thomas have rejected the notion of a Dormant Commerce Clause. Scalia believes that such a clause is inconsistent with his originalist interpretation of the Constitution. For example, the Tenth Amendment to the United States Constitution "reserve to the States respectively, or to the people" "he powers not delegated to the United States by the Constitution, nor prohibited by it to the States". If the delegation of a power to the federal government operated as a denial ("prohibit") of that power to the respective States, then every power "delegated to the United States by the Constitution" would also be a power "prohibited by it to the States respectively", such that the set of powers denied to the several States would entirely encompass the set of powers delegated to the federal government. This reading would render superfluous the Tenth Amendment's specific mention of powers denied to the government, thereby violating the canon of interpretation that, as most famously articulated by John Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174," t cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."
Read more about this topic: Dormant Commerce Clause
Famous quotes containing the words criticism of, criticism and/or doctrine:
“However intense my experience, I am conscious of the presence and criticism of a part of me, which, as it were, is not a part of me, but a spectator, sharing no experience, but taking note of it, and that is no more I than it is you. When the play, it may be the tragedy, of life is over, the spectator goes his way. It was a kind of fiction, a work of the imagination only, so far as he was concerned.”
—Henry David Thoreau (1817–1862)
“As far as criticism is concerned, we don’t resent that unless it is absolutely biased, as it is in most cases.”
—John Vorster (1915–1983)
“It has now become the doctrine of a large clan of politicians that political honesty is unnecessary, slow, subversive of a man’s interests, and incompatible with quick onward movement.”
—Anthony Trollope (1815–1882)