If All Judges Are Originalists Now, They Should Invoke the Dormant Commerce Clause Frequently

During her Supreme Court confirmation hearing, Judge Ketanji Brown Jackson stated that she believes “that the Constitution is fixed in its meaning” and “that it’s appropriate to look at the original intent, the original public meaning of the words when one is trying to assess” constitutional provisions. Her statement reminds us of Justice Kagan’s statement during her confirmation hearing that “we’re all textualists now.” Taking Judge Jackson at her word, we’re also all originalists now.

One aspect of originalism that is critical to taxpayers is judicial enforcement of the “Dormant” Commerce Clause. The Commerce Clause, in Article I, Section 8, is mostly known for justifying a wide array of federal activities, but the reason it’s in the Constitution at all is to prevent states from harming the national economy by discriminating against the commerce of another state. This aspect of the Clause is called “dormant,” or “negative,” because it refers to the ability of judges to stop state laws, without congressional action. First invoked by the Court to strike down a protectionist state enactment in Gibbons v. Ogden, 22 U.S. 1 (1824), the Commerce Clause is understood as preventing states from taxing or regulating out-of-state businesses more than in-state businesses.

This doctrine protects against economic protectionism and encourages the free flow of goods across state borders, growing the economy in the long run. NTUF frequently invokes the doctrine in its litigation to protect taxpayers from unconstitutional tax burdens, such as NTUF’s lawsuit in Louisiana where the state’s sales tax system forces out of state, online retailers to comply with the unique sales tax rules of 63 different parishes because the state lacks a centralized sales tax system.

Not everyone agrees with this interpretation of the Dormant Commerce Clause. Justice Clarence Thomas, for instance, has written in several concurrences and dissents that he believes “that the negative Commerce Clause has no basis in the text of the Constitution,” preferring to use the Import-Export Clause or to leave stopping state tax discrimination to Congress. Justice Neil Gorsuch has wondered whether the Article IV Privileges & Immunities Clause or concepts of federalism are better grounds to rely on to achieve similar results. (Codifying the Supreme Court’s standard from the Complete Auto case would address this criticism by having Congress make explicit what was decided by the Court to protect interstate commerce.)

The Dormant Commerce Clause is consistent with originalism. An analysis of the history of the Commerce Clause and the writings of the framers makes it clear that the framers of the Constitution wrote the Clause to prevent states from discriminating against interstate commerce. The Constitution’s purpose was to resolve issues plaguing the newly formed US government under the Articles of Confederation. One of these issues was a weak economy due to states imposing discriminatory taxes and tariffs on each other’s products. The Annapolis Convention was created in 1786 to deal with the trade barriers erected by states, both internal and external, and that sentiment fed right into the Constitutional Convention. It was the failure of the Articles of Confederation, which did not sufficiently empower the federal government to protect interstate commerce, that directly led to the adoption of the Constitution itself. As just one example, New York was taxing all ships heading to or from New Jersey to encourage shipping to take place in New York. New Jersey then retaliated with its own tariff on New York. However, like all tariffs, all these policies did was depress interstate trade and further weaken an already weak American economy in the early days of independence.

James Madison, the author of the Constitution, criticized these discriminatory state policies, deriding “the practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations.” Madison also noted these laws were “certainly adverse to the spirit of the Union, and tend[ed] to beget retaliating regulations, not less expensive & vexatious in themselves, than they [were] destructive of the general harmony.”

Madison was not the only Framer that warned of the danger of discriminatory taxes and protectionist economic policies. In Federalist 22, Alexander Hamilton advocated that the Constitution must be ratified to prevent “[t]he interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, [which] ha[d], in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended, till they become not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy.” This sends a strong signal that the Constitution was intended to prohibit these discriminatory taxes and regulations.

Gouverneur Morris, the penman of the Constitution, was also concerned about the states taxing each other unfairly, proclaiming at the Constitutional Convention that he put “great weight in the argument that the exporting States will tax the produce of their uncommercial neighbors.”

Many Framers were concerned about state economic protectionism, and due to these concerns, they gave the federal government the  power to regulate interstate commerce to stop the discriminatory state policies that were weakening the United States’ developing economy.

If all judges are originalists now, analyzing the writings of Madison and Hamilton shows a clear consensus that the Framers meant for the Commerce Clause to prevent states from discriminating against interstate commerce. Self-proclaimed originalist judges should thus never be afraid to invoke the Dormant Commerce Clause when they get a case about a discriminatory state tax. A failure to invoke the Dormant Commerce Clause moves the Constitution farther away from the Framers’ vision of a free-market and prosperous America.