Because the Supreme Court ruling last week that gave states more power to tax internet sales was quite technical, its momentousness was easy to miss. Reporters treated it, accurately, as a case about whether a company had to have a physical presence in a jurisdiction for it to have a duty to collect taxes there. But the case, South Dakota v. Wayfair, came out the way it did because two justices used it to reconsider a crucial legal doctrine that goes back almost as far as the U.S.
Clarence Thomas and Neil Gorsuch, arguably the two most conservative justices and certainly the two most devoted to a jurisprudence based on the original meaning of the Constitution, have previously questioned what has been called the “dormant” or “negative” commerce clause.