Enforcing a Wall of Separation Between Big Business and State: Protection from Monopolies in State Constitutions

The goal of this Note is not to convince the reader to care more about regulatory monopolies than private ones. In fact, it is not to talk about private antitrust law at all. Instead, the goal is to put today’s concern with monopolies in historical perspective. Part I traces the history of the antimonopoly spirit in the United States starting with the English tradition that was highly influential on the Founders. This Note then demonstrates that today’s concern with private monopolies comes from a shift that took place during the progressive era. In Part II, this Note highlights the role state constitutional claims can have in protecting rights, as explained by Justice William Brennan. Finally, in Part III, this Note provides a blueprint for how state antimonopoly provisions may be used to target state-created monopolies in practice and reclaim America’s Founding antimonopoly spirit