This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather.  The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed.  Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.

Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce.  Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities.  This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause.  However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.

This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce.  Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process.