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keep power in the hands of (state government] if it is not wise and timely in meeting its problems. . . .If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them.'"117 The federal judiciary has created opportunities for state foresight and assumption of responsibility. While nascent, the current movement to integrate state constitutions into the processes of state lawmaking signifies that the promises of "Our Federalism” might be realized.


1 Younger v. Harris, 401 U.S. 37, 44-45 (1971). 2 In federal constitutional history, the year 1937 is generally regarded as the birthdate of a radical shift in federal judicial thought, which ratified the expansion of federal administrative authority over economic and police power affairs that formerly had fallen within the domain of state law. This movement in constitutional jurisprudence originated with the Supreme Court's sanction of broad Congressional powers under the commerce clause. See, e.g., National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937). For accounts of the post-1937 “revolution" in federal constitutional doctrine and theory, see Grant Gilmore, The Ages of American Law (New Haven: Yale University Press, 1977); Laurence Tribe, American Constitutional Law (Mineola, New York: Foundation Press, 1988), pp. 297-316, 378-397; David Skover, “ “Phoenix Rising' and Federalism Analysis," Hastings Constitutional Law Quarterly 13 (1986): 271, 281-284. 3 See Ronald Collins and David Skover, “The Future of Liberal Legal Scholarship: A Commentary," Michigan Law Review 87 (October 1989): 1899-239. For example, the Burger Court created a "public safety"

exception to the Fourth Amendment rules against involuntary confessions in New York v. Quarles, 104 S.Ct. 2626 (1984), and a "good faith" exception to the exclusionary rule in United States v. Leon, 104 S.Ct. 3405 (1984). Moreover, after many years in which federal habeas corpus had encompassed claims under the exclusionary rule, the Burger Court held in Stone v. Powell, 428 U.S. 465 (1976), that it would not be available to review search and seizure decisions reached after full consideration in state courts. Excellent analyses of the curtailing of constitutional rights for criminal defendants recognized by the Warren Court are provided in Leonard Levy, Against the Law: The Nixon Court and Criminal Justice (New York: Harper and Row, 1974); Yale Kamisar, Police Interrogations and Confessions (Ann Arbor: University of Michigan Press, 1980). 5 The right of privacy in sexual relations, recognized for married couples in Griswold v. Connecticut, 381 U.S. 479 (1965), and for unmarried heterosexuals in Eisenstadt v. Baird, 405 U.S. 438 (1972), was not extended by the Rehnquist Court in Bowers v. Hardwick, 478 U.S. 186 (1986) to consenting adult homosexual activity in the privacy of the home. Some scholars consider Bowers to signal the demise of the current doctrine of privacy. See e.g., Daniel O. Conkle, “The Second Death of Substantive Due Process,Indiana Law Joumal 62 (1987): 1585-94. 6 In its notorious "shopping center” cases, the Burger Court compromised the force of the “public function" rationale for the state action doctrine, which had becn

used by the Warren Court to protect political speech activities. See Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); Hudgens v. National Labor Railroad Board, 424 U.S. 507 (1976). Of course, this development set the stage for independent state protection of free speech under state constitutions. Scc chapter 4. In addition, the Rehnquist Court seriously undermined the potential for finding state action in a "symbiotic" economic relationship between the state and a private party in San Francisco Arts and Athletics Inc. v. United States Olympic Committee, 107 S.Ct. 2971 (1987). For an analysis of the potential under state constitutional law for rejecting the Fourteenth Amendment state action doctrine, see David Skover, “The Washington Constitutional State Action' Doctrine: A Fundamental Right to State Action,University of Puget Sound Law Review 8 (1985): 221-82. 7 The Burger Court has not materially broadened the categories of “suspect classes” or “fundamental rights," which are especially protected under the equal protection clause, beyond those established by the Warren Court. In addition, the Court imposed a substantial burden on civil rights plaintiffs by requiring proof of intentional discrimination before an equal protection discrimination claim will be upheld. Washington v. Davis, 426 U.S. 229 (1976). Recently, the Rehnquist Court extended this requirement to hold that a challenge of racial discrimination in a petit jury must be based on proof that the jury members acted with discriminatory purpose in the criminal defendant's own trial. McCleskey v. Kemp,

107 S.Ct. 1756 (1987). 8 Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). Further discussion of the Pruneyard decision and its import for the evolution of free speech doctrine under state constitutions is found in chapter 4. Garcia v. San Antonio Mctropolitan Transit Authority, 105 S.Ct. 1005 (1985) (no independent Tenth Amendment limitation on Congress' commerce powers), overruling National League of Cities v. Usery, 426 U.S. 833

(1965). 10 The Garcia decision stressed that judicial limitation of

Congress' commerce powers in the interest of the states could be justified only by possible breakdowns in the structural or procedural restraints that protect the states within the national political processes. 105 S.Ct. at 1019-20. This emphasis on judicial review of the national political process invites the adoption of standards to ensure adequate consideration and weighing of state interests implicated in federal interstate commerce regulation. These standards might require a “clear statement" in legislative history that conscious and deliberate attention was given to state interests in striking the balance in favor of federal commerce regulation. In fact, the Court has already hinted at the viability of such standards for judicial review of federal commerce clause legislation in United States v. Bass, 404 U.S. 336 (1971), and has imposed a stringent “clear statement” rule in challenges to commerce clause legislation under the Eleventh Amendment. See, e.g., Atascadero State Hospital v. Scanlon, 105 S.Ct. 3142, 3149-50 (1985). For discussion of judicial review of the national political process under the commerce clause, see Skover, “ 'Phoenix Rising' and

Federalism Analysis." 11 Sce, e.g.. Valley Forge Christian College v. Americans

United, 454 U.S. 464 (1982Xfederal taxpayer standing); Allen v. Wright, 104 S.Ct. 3315 (1984/minority class standing).

12 For analysis and critique of recent developments in the

Eleventh Amendment sovereign immunity doctrine, see, e.g., Akhil R. Amar, “Of Sovereignty and Federalism,” Yale Law Joumal 96 (1987): 1425, and Skover, “ 'Phoenix Rising' and Federalism Analysis," pp. 298

303. 13See generally Ronald Collins and Peter Galie, “Models

of Post-Incorporation Judicial Review. 1985 Survey of State Constitutional Individual Rights Decisions,” Publius: The Journal of Federalism 16 (Summer 1986): 111-140; Collins and Galie, “State Constitutional Cases and Commentaries,National Law Journal (Sept. 29, 1986): p. S 9, col. 2; Collins, Galie, and John Kincaid, “State High Courts, State Constitutions, and Individual Rights Litigation since 1980: A Judicial Survey,Publius:

The Journal of Federalism 16 (Summer 1986)141-163. 14 See Collins and Skover, “The Future of Liberal Legal

Scholarship," Parts IV-A and IV-B. 15 This chapter's analysis of federal constitutional doc

trines often draws on the rulings in U.S. Supreme Court cases decided in the second half of the 20th century. Such a reliance neither implies that the federal Constitution means only what the Supreme Court interprets it to provide nor suggests that the political branches of the scderal government play no role in defining the scope of state power under the Constitution. Indeed, it is important not to equate federal constitutional thought cxclusively with courts, or to neglect the impact of congressional and executive action on the constitutional process. See Collins and Skover, “The Future of Liberal Legal Scholarship” (stressing the need for legislative scholarship); William N. Eskridge and Phillip P. Frickey, “Legislation Scholarship and Pedagogy in the Post-Legal Process Era," University of Pittsburgh Law Review 48 (1987): 691-731, 691, 693, 709-10, 716-19, 724-25); Ronald Collins and David Skover, “The Senator and the Constitution: An Interview with Orrin G. Hatch” (interview and annotations presenting a constitutional “profile” of Senator Hatch). Rather, this chapter's focus on jurisprudence is a function of necessity. Two of the federal constitutional provisions discussed in the first section of the chapter—the supremacy and commerce clauses-restrain a state's lawmaking under its own constitution primarily by force of Supreme Court interpretations that either presume an absence of congressional action-in the case of the dormant commerce clause doctrine-or take congressional action as a fait accompli-as in the preemption doctrine. The remainder of the first section treats those federal guarantees of individual property rights - the takings clause and the due process and equal protection clauses-that have been revitalized by recent Supreme Court interpretations to place potentially severe constraints on a state's economic regulatory powers under its constitutional and statutory law. Finally, all of the doctrines described in the second section of the chapter concern the constitutional power of the federal courts vis-a-vis state judicial and political governmental actors, and derive from Supreme Court constructions of Article III of the U.S. Constitution and of congressional grants of jurisdiction. 16 This chapter presents only a partial vision of the restraints under the U.S. Constitution on state lawmaking, including state constitutional law development. Among individual rights and federalism doctrines that are not treated here the specific limitations on state power in Art. I, 10 (particularly the commerce clause doctrine), the requirements of the privileges and immunities clause

of Art. IV, 2, the restrictions on state taxation of interstate commerce, the breadth of congressional spending power for thc “general welfare," the incorporation of the Bill of Rights through the Fourteenth Amendment due process clause, the Fourteenth Amendment equal protection clause, and the Art. III limits on federal court power (particularly the standing and political question doctrines)--all constrain state authority, to a greater or lesser degree, to regulate economic and sociopolitical interests under state constitutional and nonconstitutional law. Of course, even a cursory study of the full body of these doctrines is beyond the scope of this chapter. Three criteria distinguish the doctrines selected for review here. First, traditional federal constitutional constructs for examination of federalism issues have been fashioned through these doctrines, particularly the preemption and dormant commerce clause doctrines. Second, several of these doctrines have been especially important in the evolution of the state constitutional law movement, including preemption, independent and adequate state law grounds, abstention and equitable restraint doctrines. Third, recent Supreme Court developments in several of these doctrines, including the dormant commerce clause, takings clause and economic equal protection doctrines, have taken unanticipated turns, which may affect significantly the exercise of traditional state police powers, primarily with respect to busi

ness and land use regulation.
17 Article VI, cl. 2 of the U.S. Constitution provides:

This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made,
under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing
in the Constitution or Laws of any State to the

Contrary notwithstanding. 18 See, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 536-37

(1977) (state labelling regulation held expressly preempted by congressional prohibition of any labeling and packaging requirements in addition to those under federal statutes). 19See, e.g., City of Burbank v. Lockheed Air Terminal, 411

U.S. 624 (1973) (city ordinance regulating aircraft noise conflicted with purposes of Federal Aeronautics Act to insure the efficient utilization of airspace); Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 296 (1971Xpervasiveness of federal regulation of labor relations precludes state wrongful discharge actions requiring interpretation of labor contract's union security clause). The existence of a federal agency with broad regulatory powers in a particular subject area is relevant to the issuc of Congressional intent to preempt a field. Sce, e.g., Teamsters Local 20 v. Morton, 377 U.S. 252 (1964Xstate restrictions on striking activities preempted by national labor regulations). But a federal agency's existence is not dispositive of the issue of federal occupation, particularly when state regulation of an aspect of interstate commerce may concern itself with “local" matters. See, e.g., Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190 (1983) (California statute aimed at the economic problems of storing and disposing of nuclear waste is not preempted by extensive federal regulation of the nuclear power industry through the Nuclear Regulatory Commission).

20 Subject areas committed to congressional regulation un

der U.S. Constitution, Art. I, 8, such as bankruptcy, patent and trademark, admiralty, and immigration, have been found regulatory fields of dominant federal interest in which state activity may be barred. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941) (Pennsylvania's Alien Registration Act preempted by federal Alien Registration Act because regulation of aliens and foreign affairs is of primary national concern); Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U.S. 832 (regulation of Indian educational institutions falls within an

area of peculiarly federal interest). 21See, e.g., McDermott v. Wisconsin, 228 U.S. 115

(1913X proper labelling of syrup for retail sale under Federal Food and Drugs Act regulations would have violated state statutory requirements for labeling); Southland Corp. v. Keating, 465 U.S. 1 (1984) (California statute nullifying arbitration clauses in contracts in direct con

flict with Federal Arbitration Act). 22 See, e.g., Nash v. Florida Industrial Commission 389 U.S.

235 (1967) (invalidated state unemployment compensation law as applied to deny benefits to applicants because they had filed an unfair labor practice charge with the N.L.R.B.); City of Burbank v. Lockheed Air Terminal, Inc. It is possible that judicial enforcement of the full policy objectives underlying a congressional regulatory scheme will have the unanticipated impact of discouraging state constitutional designs that delegate economic and police powers to local governmental units. An interesting example of this phenomenon is found in Community Communications Co., Inc. v. City of Boulder, 455 U.S. 40 (1981), in which the television cable broadcasting regulations of a "home rule” municipality, granted extensive powers of self-government by its state constitution, were held to be subject to the restraints of federal antitrust legislation, as the municipality's economic controls did not enjoy immunity under the state action" ex

emption. 23 For a description of theoretical stages in the Supreme

Court's development of federalism doctrine, as viewed in the context of Congress' interstate commerce powers, see Skover, “Phoenix Rising'and Federalism Analysis,” pp. 273-91. See also Tribe, American Constitutional Law; Scheiber, "Federalism (History)" and Elazar, “Federalism (Theory),” in Leonard W. Levy, Kenneth L. Karst, and Dennis J. Mahoney, eds., Encyclopedia of the American Constitution, Vol. 2 (New York: Macmillan Publish

ing Co., 1986), pp. 697-708 (hereinafter Encyclopedia). 24 Two eras of constitutional federalism—thc pre-1930s

and the period from 1940 to 1973—were characterized by Supreme Court solicitude for national interests under the preemption doctrine, but for different theoretical reasons. Prior to the 1930s, the Supreme Court's “dual sovereignty” perspective, which rigidly differentiated federal and state spheres of power, was fortified by a presumption of federal preemption in any field that the federal government might constitutionally regulate and did in fact regulate. In contrast, during the Warren Court years, an expansive preemptive scope in any federal scheme that regulated a substantial industry solidified the jurisdiction of nascent federal administrative agencies, and secured the primacy of federal control in areas of traditional state economic and police regulation, including labor law, civil rights, welfare entitlements, and criminal law. For an excellent analysis of changes in the Supreme Court's preemption doctrines in tandem with the Court's evolving concepts of constitutional federal

ism, see Note, “The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court,” Columbia Law Review 75 (1975): 623 (surveying common directions in preemption decisions from the early 1900s

to 1974). 25 The term "cooperative federalism” refers to the notion

that national socioeconomic policy is the joint product of federal and state governmental regulation. The main features of cooperative federalism-overlapping of federal and state spheres of economic and police powers, sharing of political responsibilities and financial resources, and interdependence of administration-are associated typically with federal grant-in-aid programs. See Edward S. Corwin, Constitutional Revolution, Ltd. (Claremont, California: Pomona College, Scripps College, Claremont College. 1941); Scheiber, “Cooperative

Federalism," in 2 Encyclopedia, p. 503. 26 The federal judiciary's contemporary approach in

preemption-marked by a protective attitude toward state economic and police regulatory power-was ushered in by four Supreme Court decisions in 1973 and 1974: Goldstein v. California, 412 U.S. 546 (1973)state prohibition of reproduction of misappropriated phonograph records upheld under narrow construction of Art. 1,8 copyright clause): New York State Department of Social Services v. Dublino, 413 U.S. 405 (1973)(New York requirement that recipients of federal AFDC benefits accept employment not preempted by federal welfare regulations); Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974/federal patent law does not preempt state trade secret law); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Ware, 414 U.S. 117 (1973)state statutory directive prohibiting judicial enforcement of arbitration clauses in employee suits for collection of wages not preempted by a Securities Exchange rule of arbitration of any controversy arising from employment termination). The Burger Court's early change of direction in the presumptions underlying the Preemption Doctrine is

discussed in Note, “The Preemption Doctrine," 639-51. 27 In the Supreme Court's most recent preemption deci

sion to date, the Justices unanimously articulated this presumption as follows:

As we have repeatedly stated, "we start with the
assumption that the historic police powers of the
States were not to be superseded by the Federal
Act unless that was the clear and manifest pur-

pose of Congress.” Puerto Rico Department of Consumer Affairs v. Isla Petroleum Corporation, 56 U.S.L.W. 4307, 4308 (1988), quoting Hillsborough County v. Automated Medical Laboratories, Inc. 471 U.S. 707, 715 (1985), quoting Jones v. Rath Packing Co., 525. The state-protective presumption for the constitutional preemption doctrine has been reinforced by recent guidelines for federal executive interpretation of legislative policies that have federalism implications. President Ronald Reagan's Executive Order on Federalism requires executive departments and agencies to construe a federal statute to preempt state law only when the statute contains an express preemption provision, when there is compelling evidence of congressional preemptive intent, or when

the exercise of state authority directly conflicts with the exercise of federal authority under the federal statute. See Executive Order 12612, Federal Reg

ister, Vol. 52, No. 210, pp. 41685-688 (October 30, 1987). 28 See, e.g., C.T.S. Corp. v. Dynamics Corp. of America,

107 S.Ct. 1637 (1987/Indiana statute regulating takeovers not precmpted by Williams Act that governs hostile corporate stock tender offers); Wardair Canada, Inc. v. Florida Department of Revenue, 106 S.Ct. 2369, 2372 (1986)state sales taxation of airline fuel not preempted despite the fact that "agencies charged by Congress with regulatory responsibility over foreign air travel exercise power ... over licensing, route services, rates and fares, tariffs, safety, and other aspects of air travel”). If Congress terminates or substantially reduces regulation of a field, the federal judiciary is not likely to require an express intent to retransfer regulatory authority to the states before finding that Congress has abandoned the field. See Puerto Rico Department of Consumer Affairs v. Isla Petroleum Corp., 4308 (congressional purpose to mandate a freemarket regime in the field of petrolcum allocation and pricing and to preempt all state regulation of the field cannot be implied merely from the expiration of a former and comprehensive federal regulatory

scheme). 29 For example, in C.T.S. Corp., the Court noted that the

Williams Act would preempt a variety of state corporation laws authorizing staggered boards of directors and cumulative voting, if it were construed to invalidate any state statute that may limit or delay the free exercise of power after a successful tender offer. The Court responded:

The long-standing prevalence of state regula-
tion in this area suggests that, if Congress had in-
tended to preempt all state laws that delay the
acquisition of voting control following a tender

offer, it would have said so explicitly. 30 See, e.g., Schneidewind v. ANR Pipeline Co., 56

U.S.L.W. 4249 (1988) (Michigan statute controlling the approval of securities issues by public utilities which distributed natural gas in the state preempted by the Natural Gas Act). The Court determined that the Michigan statute was designed to protect investors and ratepayers by ensuring "efficient and uninterrupted service at reasonable rates.” The state's attempt to direct rate setting fell within the aegis of the Natural Gas Act (NGA), which had conferred on the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over the rates and facilities of natural gas companies that engaged in the wholesaling of natural gas in interstate commerce. Although NGA had not expressly authorized FERC to regulate the issuance of securities by natural gas companies, the state's pre-issuance review of securities amounted to a regulation in the field of gas wholesales that Congress “had occupied to the exclusion of state law" by “a comprehensive scheme of federal regulation.” The Court concluded:

In short, the things (the Michigan statute) is di-
rected at are precisely the things over which
FERC has comprehensive authority. Of course,
every state statute that has some indirect effect
on rates and facilities of natural gas companies is
not preempted. (The Michigan statute's) effect,
however, is not “indirect.” In this case we are
presented with a state law whose central purpose
is to regulate matters that Congress intended
FERC to regulate. Not only is such regulation
the function of the federal regulatory scheme,
but the NGA has equipped FERC adequately to
address the precise concerns (the Michigan stat-

ute) purports to manage. 31 See, e.g.,C.T.S. Corp., 1647 (no actual conflict requiring

preemption of Indiana takeover regulation, since it is entirely possible for entities to comply with both thc Indiana statute and the Williams Act; the Indiana statute pro

vides for vesting of voting rights 50 days after commencement of an offer, within the 60-day maximum period Congress established for tender offers); Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 143 (1963) (California law which regulated the marketing of avocados sold in the state did not actually conflict with federal regulations of Florida avocado production, because joint compliance was not impossible if Florida growers allowed the fruit to mature beyond the earliest

picking date permitted by federal regulations). 32 See, e.g., Schneidewind, 4254 (preemption of Michigan

natural gas rate regulation supported by the "imminent possibility of collision” between the state and federal laws, without a demonstration that the impossibility of dual compliance would be an inevitable consequence"). 33 In the absence of a finding that Congress has occupied the regulatory field, a state law which either serves identical or similar objectives as federal law, or furthers a traditional state purpose which is distinct, yet consonant with federal objectives, is likely to be sustained as “supplementary” state action. See, e.g.,C.T.S. Corp., 1645-46 (Indiana's protection of shareholders from coercive takeover offers furthers the federal policy of investor protection in the Williams Act); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) (traditional tort remedies, including compensatory and punitive damages, may be awarded to victims of radiation injuries from nuclear power plants without frustrating the federal purposes to occupy the entire field of nuclear safety concerns under the Atomic Energy Act; whatever compensation standard the state might impose, the nuclear licensee remains free to operate under the federal standards for construction

and safety and to pay for any injury that results). 34 Article I, 8, cl. 3 of the U.S. Constitution provides:

[The Congress shall have Power) to regulate
Commerce with foreign Nations, and among the

several States, and with the Indian Tribes. 35 This analysis of dormant commerce clause doctrine does

not examine the case law particular either to discriminatory and cumulatively burdensome state taxing schemes or to intergovernmental tax immunities. For useful discussions of these areas, see Paul J. Hartman, Federal Limitations on State and Local Taxation (Rochester, New York: Lawyers Co-operative Publishing Co., 1981) 2:1-2:20, 6:1-6:28; Jerome R. Hellerstein, State Taxation: Corporate Income and Franchise Tax RT. 1 (New York:

Warren Gokham and Lamont 1983), Vol. I 4.1-4.16. 36 For theoretical analyses of the designs and objectives of

the dormant commerce clause doctrine, see, e.g., Earl Maltz, “How Much Regulation Is Too Much-An Examination of Commerce Clause Jurisprudence," George Washington Law Review 50 (1981): 47 (“free location principle” in dormant commerce clause); Henry P. Monaghan, “Foreword: Constitutional Common Law,” Harvard Law Review 89 (1975): 1, (constitutional common law doctrine based on national free trade philosophy); Donald H. Regan, “The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause,” Michigan Law Review 84 (1986): 1091 (primary purpose is prevention of purposeful economic protectionism); Mark V. Tushnet, “Rethinking the Dormant Commerce Clause,” Wisconsin Law Review (1979):

125 (economic "efficiency" concerns). 37 The classic statement of the purposes and functions of

the Dormant Commerce Clause Doctrine was articulated by Justice Robert Jackson in H. P. Hood and Sons, Inc. v. Du Mond, 336 U.S. 525, 534-39 (1949):

While the Constitution vests in Congress the
power to regulate commerce among the states, it
does not say what the state may or may not do in
the absence of congressional action. (This)
Court has advanced the solidarity and prosperity
of this Nation by the meaning it has given to
these great silences of the Constitution. ...[The]
principle that our economic unit is the Nation,
which alone has the gamut of powers necessary
to control the economy, including the vital
power of erecting customs barriers against sor-
eign competition, has as its corollary that the
states are not separable economic units. ... Our
system, fostered by the Commerce Clause, is
that every farmer and every craftsman shall be
encouraged to produce by the certainty that he
will have free access to every market in the Na-
tion, that no home embargoes will withhold his
exports, and no foreign state will by custom du-
ties or regulations exclude them. Likewise, every
consumer may look to the free competition from
every producing area in the Nation to protect
him from exploitation by any. Such was the vi-
sion of the Founders; such has been the doctrine

of this Court which has given it reality. 38Concurring in Duckworth v. Arkansas, 314 U.S. 390, 400 (1941), Justice Robert Jackson explained that congressional inertia in eliminating state obstructions to interstate commerce justified judicial activism under the dormant commerce clause doctrine:

(These) restraints are individually too petty, too
diversified, and too local to get the attention of a
Congress hard pressed with more urgent mat-
ters. (The) sluggishness of government, the mul-
titude of matters that clamor for attention, and
the relative ease with which men are persuaded
to postpone troublesome decisions, all make in-
ertia one of the most decisive powers in deter-
mining the course of our affairs and frequently
give to the established order of things a longevity

and vitality much beyond its merits. In this regard, see also Ernest J. Brown, “The Open Economy: Mr. Justice Frankfurter and the Position of the Judiciary,Yale Law Journal 67 (1957): 219, 222 (“Nor has Congress been so idle that such matters could be assured a place on its agenda without competition from other business which might often be deemed more pressing”). Public choice theory may support the role of the judiciary in enforcement of the dormant commerce clause. If the benefits of economic parochialism are concentrated within a small, easily organized group of state industries, invalidation of state protectionist legislation allocates the burden of overcoming congressional inertia on the interest group that has the most economic incentive to seek favorable federal regulation. See, e.g., James Q. Wilson, The Politics of Regulation (New York: Basic Books, 1980), pp. 366-70 (need for a “watchdog” for the public interest in the case of “client politics”); Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge: Harvard University Press, 1965), pp. 1-3, 53-65, 125-31 (relatively small groups with concentrated economic interests are more frequently able to mobilize political power than relatively large, latent groups with dispersed cconomic inter

ests) 39 In one important sense, judicial enforcement of the dor

mant commerce clause doctrine against state economic regulation differs from constitutional decisions in other

contexts, such as enforcement of the commerce clause against congressional legislation or enforcement of the contract and takings clauses against state legislation. It must be remembered that the restraints of the dormant commerce clause operate in the “silence” of Congress. Congress may always displace dormant commerce clause decisions by affirmatively regulating, either to preempt state regulation of interstate commerce or to authorize state interference with interstate commerce. See, e.g., Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946) (McCanun-Ferguson Act, reserving to the states the power to regulate insurance, allows for discriminatory taxes on premiums paid to out-of-state insurance

firms). 40 Sec, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617

(1978) (invalidating a New Jersey law which prohibited the importation of solid or liquid waste collected outside the territorial limits of the state); Hughes v. Oklahoma, 441 U.S. 322 (1979) (invalidating an Oklahoma law that

barred the export of minnows taken from state waters). 41 See, e.g., Hunt v. Washington Apple Advertising Com

mission, 432 U.S. 333, 349-51(1977) (invalidating a North Carolina statute that prohibited closed containers of apples shipped into or sold in the state to display any grade other than the applicable U.S. grade or standard). Despite the evenhanded treatment of local and out-of-state producers on the face of the statute, because North Carolina had no grading requirements at all, the regulation exclusively burdened out-of-state producers with strict grading requirements. The Court attached substantial weight to the fact that, by stripping Washington of the competitive advantages it had enjoyed through its rigorous inspection and grading system, the statute ap

peared to serve an intentionally discriminatory purpose. 42See, e.g., Maine v. Taylor, 106 S.Ct. 2440 (1986) (Maine's

total ban on the importation of live bait fish, supported by bona fide concerns for the health and safety of the state's wild fish stock, sustained in the absence of reasonable nondiscriminatory alternatives to the discrimination against interstate commerce); Mintzv. Baldwin, 289 U.S. 346 (1933) (upheld New York law requiring all cattle imported into the state for dairy or breeding purposes to

be inspected for Bang's disease). 43 In other terms, the state must demonstrate that out-of

state entities are the peculiar source of an evil which the state may legitimately aim to control. Contrast City of Philadelphia (New Jersey's legitimate environmental goals could have been met by a nondiscriminatory regulation of the amounts of waste deposited in the state's private landfills, regardless of their state of origin) with Maine v. Taylor (parasites and sea animals that might upset the ecological balance of Maine's unique fisheries were not native to Maine waters, and there existed no satisfactory way to inspect baitfish shipments to screen

the harmful conditions). 44 A solid majority of the Supreme Court recently affirmed

the exacting nature of its review of discriminatory state economic regulation under the commerce clause in Brown-Forman Distillers Corp. v. New York State Liquor Authority, 106 S.Ct. 2080, 2084 (1986):

When a state statute directly regulates or dis-
criminates against interstate commerce, or
when its effect is to favor in-state economic
interests over out-of-state interests, we have
generally struck down the statute without fur-

ther inquiry. 45 Sce, e.g., Bibh v. Navajo Freight Lines, Inc., 359 U.S. 520

(1959) (invalidating Illinois' mudguard regulation as ap

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