The Commerce Clause – Commonwealth Comparisons

Abstract

As is well known, the United States (U.S.) Supreme Court appears to be re-defining its approach to the commerce clause: limits on federal power again are being enunciated. However, the debate on this issue in the United States is taking place without any significant consideration of the comparative law on the subject from Canada and Australia, which have similar clauses in their constitutions. As this Article shows, Canadian and Australian law confirm that the approach of the Supreme Court majority is preferable to that of the minority. Furthermore, the minority's fear that drawing boundaries may prove impossible is shown, by consideration of the experience of Canada and Australia, to be exaggerated.