The Supreme Court overturned years of precedent yesterday and decided that states had the authority under the Commerce Clause to tax online retailers with no physical presence within the jurisdiction. The basis for the decision was the change to the national economy created by internet sales.
That makes perfect sense, but there is more than that going on here:
- The case illustrates the absurdity of using an originalist approach in many kinds of constitutional disputes. An originalist would logically have to go to the historical record to determine what James Madison said about the internet. The likelihood of finding any thing useful, alas, is pretty small.
- The 5-4 vote mostly, but not completely, mirrored the liberal/conservative split on the court. I don’t think the liberals took their position based on their concerns about state overreaching and the Commerce Clause; I’m pretty sure their votes were a statement about the importance of stare decisis in other fields, abortion being the most obvious.