614
Thomas, J., dissenting
Indeed, the Court's early view that the Commerce Clause, on its own, prohibited state impediments to interstate commerce such that "Congress cannot re-grant, or in any manner reconvey to the states that power," Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318 (1852), quickly proved untenable. Compare Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (1852) (holding that construction of the Wheeling Bridge impeded commerce in violation of the Commerce Clause), with Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 426 (1856) (upholding Federal Act that declared the Wheeling Bridge to be "[a] lawful structur[e]"); see also Transportation Co. v. Parkersburg, 107 U. S. 691, 701 (1883) ("It is Congress, and not the Judicial Department, to which the Constitution has given the power to regulate commerce").8 And, as this Court's definition of the scope of congressional authority under the positive Commerce Clause has expanded, the exclusivity rationale has moved from untenable to absurd.
The second theory offered to justify creation of a negative Commerce Clause is that Congress, by its silence, pre-empts state legislation. See Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 493 (1887) (asserting that congressional
1829). The majority's interpretation of the letter is anachronistic. There is nothing in the letter to suggest that Madison had in mind the "negative" Commerce Clause we have created which supposedly operates of its own force to allow courts to invalidate state laws that affect commerce. Rather, Madison's reference to the Clause as granting a "power" strongly suggests that he was merely asserting that the Convention designed the Clause more to enable "the General Government," namely, Congress, to negate state laws impeding commerce "rather than as a power to be used for the positive purposes of the General Government." Ibid.
8 See also ante, at 572 ("Congress unquestionably has the power to repudiate or substantially modify th[e] course of [our negative Commerce Clause] adjudication"); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769 (1945) (Congress has "undoubted" power to "permit the states to regulate the commerce in a manner which would otherwise not be permissible").
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