The Meaning of Federalism in a System of Interstate Commerce : Free Trade Among the Several States

The most important aspect of American federalism embodied in the Constitution is 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). Commercial activity is favored in our system of free trade federalism emboldened and protected by very intentionally crafted component parts of the Constitution that limit the states’ rights to act. 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. Not everything about federalism is about leaving states alone to do what they please. 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