Dormant Commerce Clause Claims Under 42 U.S.C. § 1983: Protecting the Right To Be Free of Protectionist State Action
This Note will attempt to show that some commerce clause violations should give rise to cognizable section 1983 claims. Two fundamental questions will be addressed: Is the commerce clause the source of any “rights, privileges, or immunities secured by the Constitution?” and if so, Does section 1983 protect whatever “rights, privileges, or immunities” grow out of the commerce clause? Part I will describe the present status of authority on this issue and argue that none of the conflicting opinions have adequately addressed the fundamental questions involved. Part II will demonstrate that the commerce clause does indeed protect a “right, privilege[ ], or immunit[y].” Finally, Part III will maintain that the plain language of the statute and several Supreme Court decisions support the conclusion that the violation of any right secured by the Constitution gives rise to a section 1983 remedy.