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The "dormant" Commerce Clause, also known as the "negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the dormant Commerce Clause is that this grant of power implies a negative converse—a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflict between state and federal statutes, but Congress may allow states to pass legislation that would otherwise be forbidden by the dormant Commerce Clause.〔Williams, Norman. "(Why Congress May Not Overrule the Dormant Commerce Clause )", 53 UCLA L. Rev. 153 (2005).〕 The premise of the doctrine is that the U.S. Constitution reserves for the United States Congress at least some degree of exclusive federal power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Article I, § 8). Therefore, individual states are limited in their ability to legislate on such matters. The dormant Commerce Clause does not expressly exist in the text of the United States Constitution. It is, rather, a doctrine deduced by the U.S. Supreme Court and lower courts from the actual Commerce Clause of the Constitution. ==Origin of the doctrine== The idea that regulation of interstate commerce may to some extent be an exclusive Federal power was discussed even before adoption of the Constitution, though the framers did not use the word "dormant." On September 15, 1787, the Framers of the Constitution debated in Philadelphia whether to guarantee states the ability to lay duties of tonnage without Congressional interference, in order for states to finance the clearing of harbors and the building of lighthouses.〔2 M. Farrand, (Records of the Federal Convention of 1787 ), p. 625 (1937) (1787-09-15).〕 James Madison believed that the mere existence of the Commerce Clause would bar states from imposing any duty of tonnage: "He was more and more convinced that the regulation of Commerce was in its nature indivisible and ought to be wholly under one authority."〔 Roger Sherman disagreed: "The power of the United States to regulate trade being supreme can control interferences of the State regulations when such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction."〔 Sherman saw the commerce power as similar to the tax power, the latter being one of the concurrent powers shared by the federal and state governments. Ultimately, the Constitutional Convention decided upon the present language about duties of tonnage in Article I, Section 10, which says: "No state shall, without the consent of Congress, lay any duty of tonnage...."〔 The word "dormant," in connection with the Commerce Clause, originated in dicta of Chief Justice John Marshall. For example, in the case of ''Gibbons v. Ogden'', , he wrote that the power to regulate interstate commerce "can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant." Concurring Justice William Johnson was even more emphatic that the Constitution is "altogether in favour of the exclusive grants to Congress of power over commerce." Later, in the case of ''Willson v. Black-Bird Creek Marsh Co.'', , Chief Justice Marshall wrote: "We do not think that the () act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." If Marshall was suggesting that the power over interstate commerce is an exclusive federal power, the dormant Commerce Clause doctrine eventually developed very differently: it treats regulation that does not discriminate against or unduly burden interstate commerce as a concurrent power rather than an exclusive federal power, while treating regulation that ''does'' do those things as an exclusive federal power. Thus, the modern doctrine says that congressional power over interstate commerce is somewhat exclusive, but "not absolutely exclusive".〔Pommersheim, Frank. (Landscape : Indians, Indian Tribes, and the Constitution: Indians, Indian Tribes, and the Constitution ), p. 41 (Oxford University Press 2009).〕 This approach began in the 1851 case of ''Cooley v. Board of Wardens'', in which Justice Benjamin R. Curtis wrote for the Court: "Either absolutely to affirm, or deny that the nature of this () power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part."〔(Cooley v. Board of Wardens ), 53 U.S. 299 (1851).〕 The first clear holding of the U.S. Supreme Court striking down a state law under the dormant Commerce Clause came in 1873.〔Reading Railroad v. Pennsylvania, (82 U.S. (15 Wall.) 232 (1873) ).〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「dormant commerce clause」の詳細全文を読む スポンサード リンク
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