Editing Dormant Commerce Clause (section)

==Criticism of the doctrine==
A "negative" or "dormant" component to the Commerce Clause has been the subject of scholarly discussion for many decades.<ref>Felix Frankfurter ''The Commerce Clause Under Marshall, Taney and Waite'', 12 (1937) (describing absence of comment during drafting and ratification of Constitution regarding possible negative implications of Commerce Clause); Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 ''Minn. L. Rev.'' 432, 493 (1941) (arguing that historical evidence "supports the view that, as to the restricted field which was deemed at the time to constitute regulation of commerce, the grant of power to the federal government presupposed the withdrawal of authority ''pari passu'' from the states.").</ref>  Supreme Court Justices [[Antonin Scalia]]<ref>''[[Tyler Pipe Industries v. Department of Revenue]]'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=483&invol=232 483 U.S. 232] (1987).</ref><ref>''[[Itel Containers Int'l Corp. v. Huddleston]]'', 507 U.S. 60(1993) (Scalia, J., concurring in part and concurring in the judgment) (concurring in enforcement of dormant Commerce Clause on stare decisis grounds)</ref> and [[Clarence Thomas]]<ref>''[[United Haulers Assn. v. Oneida-Herkimer Solid Waste Mgmt. Auth.]]'', [http://www.scotusblog.com/movabletype/archives/05-1345_All.pdf 550 U.S. ___] (2007).</ref> have rejected the notion of a Dormant Commerce Clause.  They believe that such a doctrine is inconsistent with an [[Originalism|originalist]] interpretation of the Constitution—so much so that they believe the doctrine is a "judicial fraud".<ref name=Wynne />

A number of earlier Supreme Court justices also expressed dissatisfaction with the dormant Commerce Clause doctrine.  For example, [[Roger Taney|Chief Justice Taney]] said this in 1847:<ref>License Cases (Thurlow v. Massachusetts; Fletcher v. Rhode Island; Peirce v. New Hampshire), [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=46&invol=504 46 U.S. 504 (1847)].</ref>

<blockquote>If it was intended to forbid the States from making any regulations of commerce, it is difficult to account for the omission to prohibit it, when that prohibition has been so carefully and distinctly inserted in relation to other powers ... [T]he legislation of Congress and the States has conformed to this construction from the foundation of the government ... The decisions of this court will also, in my opinion, when carefully examined, be found to sanction the construction I am maintaining.</blockquote>

However, that statement by Taney in 1847 was before the doctrine morphed in the 1851 case of ''[[Cooley v. Board of Wardens]]'', in which Justice [[Benjamin R. Curtis]] wrote for the Court that the Commerce Clause does not always require "exclusive legislation by Congress".<ref name=Cooley />