Tax Analysts Blog

Scalia Is Right

Posted on May 27, 2015

The Supreme Court kept state tax folks busy last week by deciding Comptroller of the Treasury of Maryland v. Wynne. By far the most interesting and entertaining part of the decision was Justice Antonin Scalia's dissent. He colorfully called the dormant commerce clause, upon which the majority hangs its hat, a judicial fraud.

The majority used some really old precedent from cases tangentially on point to strike down part of Maryland's income tax scheme. Walter Hellerstein, Joseph Henchman, and a lot of other people think the Court decided Wynne correctly. It seems so, although four justices disagreed. The Wynnes were going to be double taxed, and if you don't give credit for taxes paid to other states, you run the risk of violating the commerce clause.

In his dissent, Scalia wrote, "The fundamental problem with our negative commerce clause cases is that the Constitution does not contain a negative commerce clause. It contains only a Commerce Clause." Scalia said other irreverent things as well, including calling the evolution of the dormant commerce clause a "bestiary" of ad hoc tests. He then criticized the Court's "ad hocery" in using the internal consistency test. All other justices pale in comparison when it comes to putting pen to paper.

Scalia believes the dormant commerce clause is a made-up rule that is read into the Constitution. I realize that liberals dismiss out of hand the argument that we should be guided by the plain language of the Constitution. After all, if you're locked into what the Constitution actually says, iconic decisions such as Griswold v. Connecticut and Roe v. Wade would have come out differently. There would be no constitutional right to privacy hidden in the penumbras of other words.

But maybe we should pay more attention to the actual text of the commerce clause. Article I, section 8, clause 3 of the Constitution says Congress has the power to "regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." That's it. It doesn't say anything else. There is no hint of it being self-executing. There is no mention of an inherent limitation on state taxing authority. The majority in Wynne say the authors of the Constitution were concerned about the Balkanization of the country into little economic fiefdoms. A lot of commerce clause opinions say the Founding Fathers were concerned about Balkanization even though the term wasn't invented until 1919. And the majority in Wynne cites the great Justice John Marshall's dicta in Gibbons v. Ogden for the self-executing proposition. Ever since Marshall wrote that, courts have assumed it to be true. Scalia likens that assumption to weeds with deep roots.

I question Marshall warily. After all, he resides in the pantheon of jurists. But consider for a moment that maybe the Constitution actually means what it says. Congress can regulate interstate commerce, but only if it chooses to do so. If we are concerned about Balkanization or even Scandinavianization, Congress should do something about it. It can require states to give credits like those Maryland refused to grant. It can prohibit or require taxation of remote sales. It can address any of the myriad issues that give rise to state protectionism through tax laws. Of course, that would require Congress to take a break from doing nothing and actually think about interstate commerce.

Scalia's argument is consistent with the position asserted by Maryland in its Wynne brief. The state argued that there was a political solution to the problem presented by the Wynnes. If the people of Maryland don't like their tax structure, they can push their legislators to change it. There was a solution before making a state, and then federal, case out of the issue. But the dormant commerce clause has the insidious effect of prompting everyone with a grievance to turn to the courts. The authors of the Constitution may have wanted that, but they sure didn't say it.

The dormant commerce clause is here to stay, with precedent and established expectations and all, but it would be nice if we just admitted that we made it up.

This post is an excerpt of an article that appeared in State Tax Notes.

Read Comments (5)

mr. sal s.May 26, 2015

Scalia is wrong and a fraud. His opinions are governed by his heavy
right-wing, conservative bias. He cherry picks when he wants to use plain
meaning versus deriving an interpretation that's implicit within our
Constitution. Strict interpretationist my...

Not to open up a can of worms, but to simply give an example, look at what he's
done with the Second Amendment and other contortions of interpretation.
Where's his plain meaning analysis there? Out the window. In fact, he created
a right that isn't there. Seems hypocritical when looking at how he dealt with

Personally, I believe the majority got it right. The Constitution was written
by human beings, not some higher power or powers. You have to look at it in
context of when it was written and its applicability to today. Objectivity and
fairness should rule. It's sometimes very difficult, but that's what we have.

HooeyMay 27, 2015

Mr. Sal S., your second paragraph isn't at all clear. Don't know what you're
talking about and don't feel inclined to track it down.

Words must have some meaning. We have elections and the Constitutional
amendment process for a reason (and the latter might be made simpler). If the
court was less willing to make things up--people would be more interested in
the electoral process.

Personally, I would prefer to have laws created by elected officials as opposed
to nine nominated jurists. The Bill of Rights was adopted by popular demand,
as well as the abolition of slavery and women's suffrage.

It's as though the constitutional amendment process is obsolete now that we
have eight (didn't include Scalia) all knowing jurists who can make the
constitution mean what we all supposedly want it to mean today.

Your approach leads to the demise of democracy and creates a system of
government in which laws that are not read before they are passed (Obamacare)
are reinterpreted by nine jurists to make them work. That's a prescription for
an authoritarian state.

mr. sal s.May 27, 2015

Hooey, my second paragraph is very clear. Just do some simple research.

Your last paragraph makes no sense regarding my opinion. I never advocated what
you stated. My general complaint is activist judges (whether liberal or
conservative) reinterpreting law to make them work for a particular agenda.
That doesn't translate into me being in favor of the system you described. I'm
against it.

Whether it's Obamacare or The Patriot Act (which, by the way, wasn't read
before it was passed either), or other similar nonsense, We The People
abdicated our voice a long time ago to special interests and Democracy in our
country has been lacking for a long time now. But, I digress.

edmund dantesMay 28, 2015

I don't always agree with Scalia, but he got it right in Wynne. The
constitution means what it says, nothing more, nothing less.

Great post by Brunori.

Dan R.Jun 9, 2015

Well, I have one thought (for now anywway). Where do you find the right to
"privacy" or the "penumbra" in a plain (or strict) reading the Bill of Rights?
That judicial creation, which sprang to life in 1965, penned by Justice Douglas
in Griswold v. Conn., 381 U.S. 479, led to a series of decisions enlarging the
cope of protections now afforded by the Constitution. Like 'em or hate 'em, you
can't escape that truth.

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