See Richard A. Epstein,
Waste & the Dormant Commerce Clause,
3 Green Bag 2d 29 (1999).

    The "dormant commerce clause" is not in the Constitution. Chief Justice Marshall planted the seed, or set the booby trap, in Willson v. Black-bird Creek Marsh Co., 27 U.S. 245 (1829), describing a "power to regulate commerce in its dormant state." Id. at 252. The apparently immortal phrase gestated for more than a century, and was delivered by a dissenting Justice Frankfurter in Hill v. State of Florida, 325 U.S. 538, 547 (1945).