Copyright (c) 2008 University of Notre Dame
Notre Dame Law Review
ARTICLE: THE FOUNDATIONS OF THE AMERICAN COMMON MARKET
NOTRE DAME LAW REVIEW
84 Notre Dame L. Rev. 409
Norman R. Williams*
The United States Constitution commits the nation to a liberal, free-trade regime among the states. That commitment is embodied in several constitutional provisions that limit the authority of the states to restrict interstate trade or commerce, most notably the "dormant Commerce Clause." 1 As the Supreme Court has observed, these provisions effectively create a common market trading system for the nation. 2 Although the adoption of liberal international trading regimes, such as the World Trade Organization, has prompted substantial controversy both within the United States and around the globe, 3 Americans have seemingly embraced the idea of domestic free trade.
To say that the Constitution creates a domestic free trade regime, though, tells us little about the nature or constitutional contours of that system. Common market systems are neither uniform nor self-identifying. While all common markets presuppose a reasonable degree of mobility of goods, services, capital, and labor across interior borders, 4 such trading regimes span a spectrum from aggressive common market systems that prohibit protectionism and promote trade harmonization (such as the European Union), 5 to more moderate trading unions that disfavor protectionism but do not require substantial trade harmonization (such as the WTO), 6 to weak custom unions that prohibit only the imposition of tariffs and quotas on member states' goods. 7 The key question centers upon the constitutional contours of the American common market. To what extent are states free to adopt tax or regulatory measures that interfere with interstate commerce? ...
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