Through the passage of time, the dormant commerce clause doctrine has acquired a patina of legitimacy; the doctrine frequently is used by the judiciary to overturn state regulation of commerce. Professor Martin Redish and Shane Nugent argue that time alone cannot legitimize such actions by the courts, and that the Constitution provides no textual basis for the exercise of this authority. Moreover, they contend that the doctrine actually undermines the carefully structured federal balance embodied in the text. They further argue that nontextual rationales are flawed, and that jurisprudence based on the text of the Constitution can deal adequately with discriminatory state legislation currently overturned by reference to a "dormant" commerce clause.
Martin H. Redish & Shane V. Nugent,
The Dormant Commerce Clause and the Constitutional Balance of Federalism,
1987 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol36/iss4/1