Philip Hamburger (Columbia) sends the following:
Recent posts by Mike Greve, Mike Ramsey, and Mike Rappaport have drawn attention to the dormant-commerce-clause question that will soon come before the Supreme Court in Comptroller v. Wynne. The constitutional question is important, and the justices therefore should consider not only the familiar Commerce Clause but also the second Commerce Clause. Yes, that’s right, there are two of them!
The details are laid out in my new (and very short) article on SSRN called “The Second Commerce Clause.” The following abstract suggests the second clause’s significance:
The Commerce Clause has long figured as the only commerce clause in the United State Constitution. It is, indeed, The Commerce Clause. Nonetheless, it has a doppelgänger—another commerce clause that inconspicuously shadows the first and reveals its outlines with unexpected clarity. And this second Commerce Clause is particularly interesting because it calls into doubt the doctrine on the so-called “dormant Commerce Clause.”
Thanks to Professor Hamburger for the tip. It is indeed an interesting (and short) piece, pointing out a clause I had not previously thought about.
Posted at 6:04 AM