Dormant Commerce Clause - Origin of The Doctrine

Origin of The Doctrine

The idea that regulation of interstate commerce may to some extent be an exclusive Federal power was discussed even before adoption of the Constitution, though the framers did not use the word "dormant." On September 15, 1787, the Framers of the Constitution debated in Philadelphia whether to guarantee states the ability to lay duties of tonnage without Congressional interference, in order for states to finance the clearing of harbors and the building of lighthouses. James Madison believed that the mere existence of the Commerce Clause would bar states from imposing any duty of tonnage: "He was more and more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority."

Roger Sherman disagreed: "The power of the United States to regulate trade being supreme can control interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction." Ultimately, the Constitutional Convention decided upon the present language in Article I, Section 10, which says: "No state shall, without the consent of Congress, lay any duty of tonnage...."

The word "dormant," in connection with the Commerce Clause, originated in dicta of Chief Justice John Marshall. For example, in the case of Gibbons v. Ogden, 22 U.S. 1 (1824), he wrote that the power to regulate interstate commerce "can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant." Concurring Justice William Johnson was even more emphatic that the Constitution is "altogether in favour of the exclusive grants to Congress of power over commerce."

Later, in the case of Willson v. Black-Bird Creek Marsh Co., 27 U.S. 245 (1829), Chief Justice Marshall wrote: "We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."