The Collective-Action Constitution
Neil S. Siegel
Published:
2024
Online ISBN:
9780197760994
Print ISBN:
9780197760963
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The Collective-Action Constitution
Neil S. Siegel
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Neil S. Siegel
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171–228
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Published:
April 2024
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Siegel, Neil S., 'Interstate Commerce, Foreign Commerce, and Related Principles', The Collective-Action Constitution, Theoretical Perspectives in Law (
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Abstract
Chapter 5 of The Collective-Action Constitution leverages collective-action reasoning to explain the origins of the Interstate Commerce Clause, to critique the US Supreme Court’s formal distinctions in many cases interpreting this clause, and to identify a functional replacement: the distinction between collective and individual action by states. In partial contrast to the Court, this chapter reads the Interstate Commerce Clause textually and structurally as authorizing federal legislation that helps address a multistate collective-action problem caused by interstate spillovers with economic effects. Under this approach, Gibbons v. Ogden (1824) and all important decisions from 1937 to the 1990s are correctly decided. A collective-action approach also explains why the contemporary Court has decided most of its Interstate Commerce Clause cases correctly, albeit for reasons other than what its doctrine states. The chapter next questions the categorical nature of the Court’s anti-commandeering principle and defends the Court’s dormant commerce doctrine, including its two exceptions. The chapter then leverages collective-action logics to illuminate the Founding history and scope of the Foreign and Indian Commerce Clauses. The states must act collectively, not individually, to act effectively in their commercial relations with other nations. Moreover, “Commerce” in these clauses should be interpreted how it is structurally best understood in interstate-commerce cases: to include interactions and affairs outside markets in addition to trade and other economic activities. Finally, this chapter discusses the constitutional principle that valid federal law supersedes conflicting state law (preemption), which flows directly from a collective-action account of the Constitution.
Keywords: Commerce Clause, Resolution VI, collective action, commandeering, anti-commandeering, dormant commerce, foreign commerce, Indian commerce, interstate commerce, preemption
Subject
Constitutional and Administrative Law
Collection: Oxford Scholarship Online
The Collective-Action Constitution. Neil S. Siegel, Oxford University Press. © Neil S. Siegel 2024. DOI: 10.1093/oso/9780197760963.003.0006
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