Toward a Principled Interpretation of the Commerce Clause

Abstract

Formalism is the jurisprudence of rules.1 Functionalism is the jurisprudence of balancing tests.2 If forced to choose between formalism and functionalism, I would probably corne down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism-in other words, because there are good functionalist reasons to be a formalist.3 Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancing,4 but rather over the generality and the source of the