In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.
Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.
Thus, my criticism of the opinions in Wynne is quite different from Michael’s.