Consumer Protection Laws of the States: How Much Diversity Should the Central Government Discourage? Where Desirable, How Should Uniformity Be Promoted?
Norman I. Silber
At the core of American federalism lies the paradox of Imperium in Imperio, or an "empire within an empire." 1 It has been said that without the exercise of relatively autonomous political power by legislative bodies on at least two planes of government, there would be no federal system. Without such a concept, political power would be either centralized or else dispersed in a confederal fashion. The framers of the Constitution most feared usurpation of power, not by the federal government, but by the states. James Madison, for example, expressed the common opinion, based on the experience with the Articles of Confederation, that
there was less danger of encroachment from the General (federal) government than from the state government; that the mischief from encroachments would be less fatal if made by the former than if made by the latter. All the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than to usurpations of the federal head. 2
At the core of the American federal system are concurrent powers that belong to the states, and that are beyond the ability of the federal government to curtail or displace through preemption. These include the power to tax in the absence of evidence that a state has imposed a burden on commerce among the several states; the power to regulate the impact of businesses and individuals on localities; and the power of state courts to enforce common law rules.
Historically, the states have taken on a first-line role in policing the local marketplace for signs of fraud and abuse. In recent years, and especially after the Republican election victory of 1980, states aggressively have pursued the