National Judicial Power and the Dormant Commerce Clause Chapter

The rise of the “dormant Commerce Clause” (DCC) is often portrayed as a doctrinal tour de force of a powerfully ascendant U.S. Supreme Court. Richard Bensel, for example, expresses a typical view when he writes: “By striking down state attempts to regulate interstate commerce, the federal courts simultaneously consolidated national judicial supremacy (over state sovereignty) and constructed a national marketplace” (2000, 325, n. 122). Similarly, Felix Frankfurter refers to the DCC as an “audacious doctrine” that requires that “state authority must be subject to such limitations as the Court finds it necessary to apply for the protection of the national