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Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William Van Alstyne
Federalism, Congress, The States And The Tenth Amendment: Adrift In The Cellophane Sea, William Van Alstyne
Duke Law Journal
Like Gaul, this essay is divided into three parts. The first two parts are adapted from a public address delivered at the Association of the Bar of the City of New York, as part of its Bicentennial series, in 1987. The third part was added later, originally as an Addendum Note. The general subject was introduced by the moderator, Mr. Robert MacCrate, President of the American Bar Association, who put the following question: "Where does the federalism of the Constitution stand today?" Professor Martha Field of the Harvard Law School presented a paper in first response. This paper then followed, …
The Dormant Commerce Clause And The Constitutional Balance Of Federalism, Martin H. Redish, Shane V. Nugent
The Dormant Commerce Clause And The Constitutional Balance Of Federalism, Martin H. Redish, Shane V. Nugent
Duke Law Journal
Through the passage of time, the dormant commerce clause doctrine has acquired a patina of legitimacy; the doctrine frequently is used by the judiciary to overturn state regulation of commerce. Professor Martin Redish and Shane Nugent argue that time alone cannot legitimize such actions by the courts, and that the Constitution provides no textual basis for the exercise of this authority. Moreover, they contend that the doctrine actually undermines the carefully structured federal balance embodied in the text. They further argue that nontextual rationales are flawed, and that jurisprudence based on the text of the Constitution can deal adequately with …