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Umpire to the Federal System, 10 University of Chicago Law Review 27 (1942)


HAND in hand together, Due Process and the Commerce Clause amble across the pages of the United States Reports. Though one is supposed to provide a balance between the individual and his government and the other between state and nation, they have more or less been interchangeable devices for protecting the status quo against social legislation. A Court which struck down state legislation in the name of the Fourteenth Amendment was usually a Court which also found a negative implication in the Commerce Clause to prevent state regulation of interstate business. And except for certain traditional types of commerce and a few pronouncements of the Taft Court, the Commerce Clause hardly seemed a strong affirmative instrument for national regulation. By adept manipulation of these two constitutional provisions the Court steadily erected a no man's land free from any governmental regulation. In fact, the primary objective of no-regulation finally became so important that the Court lost its adeptness and in one instance confused the two concepts by saying in effect that the Commerce Clause did not extend to regulation of commerce if the regulation was without due process of law.

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