The Dormant Commerce Clause: The Origin Story and the "Considerable Uncertainties" -- 1824 to 1945

Abstract

As the Court put it in Wayfair, “[t]hough considerable uncertainties were yet to be overcome, these precedents [Gibbons, Black-Bird Creek, and Cooley] still laid the groundwork for the analytical framework that now prevails for Commerce Clause cases.” This Article will try to provide some light to those over 100 years of “considerable uncertainties” between Cooley and Southern Pacific, a period of time when the Court, among other developments, tried to reconcile Gibbons’ exclusivity and Cooley’s selective exclusivity views of the Dormant Commerce Clause. The modern application of the Dormant Commerce Clause test will be saved for another time.