Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 50 (1997)

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Cite as: 520 U. S. 564 (1997)

Thomas, J., dissenting

of them by the states").6 It was seriously questioned even in early cases. See License Cases, 5 How. 504, 583, 615, 618, 624 (1847) (four, and arguably five, of the seven participating Justices contending that the Commerce Clause was not exclusive). And, in any event, the Court has long since "repudiated" the notion that the Commerce Clause operates as an exclusive grant of power to Congress, and thereby forecloses state action respecting interstate commerce. Freeman v. Hewit, 329 U. S. 249, 259, 262 (1946) (Rutledge, J., concurring); see also, e. g., Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 766-767 (1945) ("Ever since Willson v. Black-Bird Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of Wardens, 12 How. 299, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it"); James v. Watt, 716 F. 2d 71, 73 (CA1 1983) (Breyer, J.) (noting that "the strong Madison/Marshall 'preemptive' view of the Interstate Commerce Clause is no longer the law of the land"), cert. denied, 467 U. S. 1209 (1984).7

6 See also F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 13 (1937) ("The conception that the mere grant of the commerce power to Congress dislodged state power finds no expression" in the records of the Philadelphia Convention nor the discussions preceding ratification); id., at 17-19 (noting that Chief Justice Marshall's discussion of the "exclusiveness" doctrine in Gibbons v. Ogden, 9 Wheat. 1, 197-209 (1824), "was logically irrelevant to [his] holding," and adding: "It was an audacious doctrine, which, one may be sure, would hardly have been publicly avowed in support of the adoption of the Constitution. Indeed, The Federalist in effect denied it, by assuring that only express prohibitions in the Constitution limited the taxing power of the states" (citing The Federalist No. 32)).

7 The majority's assertion that James Madison viewed what we have termed the "negative" aspect of the Commerce Clause as more significant than its positive aspects, see ante, at 571, n. 7, is based on a letter written by Madison more than 40 years after the Convention, see 3 The Records of the Federal Convention of 1787, p. 478 (M. Farrand ed. 1911) (hereinafter Farrand) (reprinting letter from James Madison to J. C. Cabell, Feb. 13,

613

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