Quill Corp. v. North Dakota, 504 U.S. 298, 25 (1992)

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Opinion of White, J.

of-state mail-order businesses that do not have a "physical presence" in the State. The Court stops short, however, of giving Bellas Hess the complete burial it justly deserves. In my view, the Court should also overrule that part of Bellas Hess which justifies its holding under the Commerce Clause. I, therefore, respectfully dissent from Part IV.


In Part IV of its opinion, the majority goes to some lengths to justify the Bellas Hess physical-presence requirement under our Commerce Clause jurisprudence. I am un-persuaded by its interpretation of our cases. In Bellas Hess, the majority placed great weight on the interstate quality of the mail-order sales, stating that "it is difficult to conceive of commercial transactions more exclusively interstate in character than the mail-order transactions here involved." Id., at 759. As the majority correctly observes, the idea of prohibiting States from taxing "exclusively interstate" transactions had been an important part of our jurisprudence for many decades, ranging intermittently from such cases as Case of State Freight Tax, 15 Wall. 232, 279 (1873), through Freeman v. Hewit, 329 U. S. 249, 256 (1946), and Spector Motor Service, Inc. v. O'Connor, 340 U. S. 602 (1951). But though it recognizes that Bellas Hess was decided amidst an upheaval in our Commerce Clause jurisprudence, in which we began to hold that "a State, with proper drafting, may tax exclusively interstate commerce so long as the tax does not create any effect forbidden by the Commerce Clause," Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 285 (1977), the majority draws entirely the wrong conclusion from this period of ferment.

The Court attempts to paint Bellas Hess in a different hue from Freeman and Spector because the former "did not rely" on labeling taxes that had "direct" and "indirect" effects on interstate commerce. See ante, at 310. Thus, the Court concludes, Bellas Hess "did not automatically fall with Free-

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