Brief of Amicus Curiae of Competitive Enterprise Institute in South Dakota v. Wayfair
Before overruling precedent, it is important to evaluate that precedent from a broader constitutional perspective. Precedents that may seem doubtful in isolation may nonetheless merit retention insofar as they compensate for earlier errors in the law. See McDonald v. City of Chicago, 561 U.S. 742, 756-58 (2010) (despite narrow reading of Privileges and Immunities Clause being widely considered “ ‘egregiously wrong,’ ” no need to reconsider interpretation where work of incorporation was being done by the Due Process Clause); id. at 791 (Scalia, J., concurring) (acquiescing, despite “misgivings,” in incorporation via the Due Process Clause); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 636 (1997) (Thomas, J., joined by Scalia, J., dissenting) (noting deep disagreement with negative Commerce Clause jurisprudence, that “much of what the Import-Export Clause appears to have been designed to protect against has since been addressed under the negative Commerce Clause,” and that “[w]ere it simply a matter of invalidating state laws under one clause of the Constitution rather than another, I might be inclined to leave well enough alone.”); cf. Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., joined by Thomas, J., dissenting) (noting it is “perhaps just as well” that broad qualified immunity arose given that it compensates for erroneous broadening of § 1983; “Applying normal common-law rules to the statute that Monroe created would carry us further and further from what any sane Congress could have enacted.”).
The physical-presence rule of National Bellas Hess, Inc. v. Dept. of Revenue of Ill., 386 U.S. 753 (1967), and Quill Corp. v. North Dakota, 504 U.S. 298 (1992), is best viewed as such a second-best, compensatory rule. While the decisions behind that rule may look odd or inconsistent on their own narrow terms, they fill an erroneously vacated niche in the constitutional order. Quill’s physical-presence rule helps maintain the essential territorial aspects of federalism that were meant to order horizontal relations between the States but that have been weakened by earlier mistakes in constitutional jurisprudence.
The broader constitutional perspective is an essential counterpoint to the tendency to consider cases only in their narrow and legal and factual context. The competing economic and political interests in this case naturally emphasize the immediate economic and administrative consequences of revising, or not, this Court’s decision in Quill. Structural constitutional principles recede into the background. However, an intimate connection between economic interest and state authority has been with us from the beginning. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824),
was a quarrel among business enterprises. And yet, it was decided in light of high constitutional principle.
Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), was a seemingly narrow dispute about a state-imposed business tax, but it, too, prompted this Court’s serious reflection on the nature of the Union, and its federalism.
This case should be decided from that same broader perspective. Properly viewed in constitutional context, Quill’s physical-presence rule is not merely an arbitrary protection for some participants in interstate commerce; it is an essential, albeit imperfect, element of the horizontal aspect of the Constitution’s federalism. Whatever the shifting doctrinal pedigree of that rule, the rule itself remains constitutionally sound as a means of enforcing federalism principles otherwise eroded by earlier flawed precedent. To uproot such gap-filling precedent without also revisiting in some way the earlier gap-creating precedent would leave the law at odds with the overall constitutional text and structure.