Dual Antitrust Enforcement in the 1990s
Robert Abrams and Lloyd Constantine
The year 1989 marked both the centennial of U.S. antitrust laws 1 and our Constitution's bicentennial. This coincidence is occasion to recall that each charter derived from the need to facilitate interstate commerce and realize the vast economic potential of the nation.
The commerce, 2 compact, 3 and supremacy 4 clauses of the Constitution, with declining specificity, delegated to the central government powers designed to end the economic balkanization that prevailed under the Articles of Confederation. It would be incorrect, however, to view these clauses as ends in themselves or infer any absolute delegation of power over regulating the national economy to the central government or relegation of state authority to purely local commercial concerns. 5
Working several hundred yards from the spots where Washington took the oath of office and Hamilton wrote the majority of the Federalist papers, I am careful to speak of delegation, rather than grants of power to the central or state governments, because all powers flow from and are ultimately reserved to the people. This fact should be emphasized in any discussion of the relative merits of antitrust policy and enforcement flowing from unelected and substantially unaccountable federal bureaucrats, as opposed to the practices of state attorneys general. Such state officials are usually elected by the same vox populi that demanded the enactment of the antitrust laws, which are themselves the clearest and most long lived expression of American Populism.
One purpose of this chapter is to chart the evolution of the current relationship between state and federal governmental antitrust enforcement. To do so will require many visits to 1789 and 1889. But, first, let us visit