Editing Dormant Commerce Clause (section)

==Origin of the doctrine==
[[File:Chief Justice John Marshall.jpeg|alt=Chief Justice Marshall engraving.|thumb|Chief Justice John Marshall first envisioned the dormant commerce clause doctrine in his 1824 opinion in ''Gibbons v. Ogden.'']]
The idea that regulation of interstate commerce may to some extent be an exclusive Federal power was discussed even before adoption of the Constitution. 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 so that the states could finance the clearing of [[harbors]] and the building of [[lighthouses]].<ref name="press-pubs.uchicago.edu">2 M. Farrand, [http://press-pubs.uchicago.edu/founders/documents/a1_10_3s2.html Records of the Federal Convention of 1787], p. 625 (1937) (1787-09-15).</ref> [[James Madison]] believed that the mere existence of the Commerce Clause would bar states from imposing any duty of tonnage: "[Madison] was more and more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority."<ref name="press-pubs.uchicago.edu"/> [[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."<ref name="press-pubs.uchicago.edu" /> Sherman saw the commerce power as similar to the tax power, the latter being one of the [[concurrent powers]] shared by the federal and state governments.  Ultimately, the [[Philadelphia Convention]] decided upon the present language about duties of tonnage in [[Article One of the United States Constitution#Section 10: Limits on the States|Article I, Section 10]], which says: "No state shall, without the consent of Congress, lay any duty of tonnage{{nbsp}}..."<ref name="press-pubs.uchicago.edu" />

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]],''<ref>{{ussc|22|1|1824}}</ref> Marshall 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." In concurrence, Justice [[William Johnson (judge)|William Johnson]] was even more emphatic that the Constitution is "altogether in favor of the exclusive grants to Congress of power over commerce."<ref name=":12">{{Cite journal|last=Morgan|first=Donald G.|date=1944|title=Mr. Justice William Johnson and the Constitution|url=https://www.jstor.org/stable/1335111|journal=Harvard Law Review|volume=57|issue=3|pages=339|doi=10.2307/1335111|jstor=1335111}}</ref> Later, in the case of ''[[Willson v. Black-Bird Creek Marsh Co.]]'', Marshall wrote: "We do not think that the [state] 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."<ref>{{ussc|27|245|1829}}.</ref>

If Marshall was suggesting that the power over interstate commerce is an [[exclusive federal power]], the Dormant Commerce Clause doctrine eventually developed very differently: it treats regulation that does not discriminate against or unduly burden interstate commerce as a concurrent power, rather than an exclusive federal power, and it treats regulation that does so as an exclusive federal power. Thus, the modern doctrine says that congressional power over interstate commerce is somewhat exclusive but "not absolutely exclusive".<ref>Pommersheim, Frank.  [https://books.google.com/books?id=DbNdwTo2ENEC&pg=PA41Broken Landscape : Indians, Indian Tribes, and the Constitution: Indians, Indian Tribes, and the Constitution], p. 41 (Oxford University Press 2009).</ref> The approach began in the 1851 case of ''[[Cooley v. Board of Wardens]]'', in which Justice [[Benjamin R. Curtis]] wrote for the Court: "Either absolutely to affirm, or deny that the nature of this [commerce] power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part."<ref name="Cooley">[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=53&page=299 Cooley v. Board of Wardens], 53 U.S. 299 (1851).</ref> The first clear holding of the Supreme Court striking down a state law under the Dormant Commerce Clause came in the 1873 case ''[[Reading Railroad Company v. Pennsylvania (1872)|Reading Railroad Company v. Pennsylvania]]''.<ref>Reading Railroad v. Pennsylvania, [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=82&invol=232 82 U.S. (15 Wall.) 232 (1873)].</ref>