620
Thomas, J., dissenting
homa Tax Comm'n v. Jefferson Lines, Inc., 514 U. S. 175, 196, n. 7 (1995). The examples are almost too numerous to count, but there is perhaps none that more clearly makes the point than a comparison of our decisions in Philadelphia v. New Jersey, 437 U. S. 617 (1978), and its progeny, on the one hand, and Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 (1888), and its progeny, on the other. In Bowman, we recognized that States can prohibit the importation of "cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption," id., at 489, a view to which we have adhered for more than a century, see, e. g., Maine v. Taylor, 477 U. S. 131 (1986); Asbell v. Kansas, 209 U. S. 251 (1908). In Philadelphia, however, we held that New Jersey could not prohibit the importation of "solid or liquid waste which originated or was collected outside the territorial limits of the State." 437 U. S., at 618 (internal quotation marks omitted). The cases were arguably distinguishable, but only on policy grounds and not on any distinction derived from the text of the Constitution itself.
Similarly, we have in some cases rejected attempts by a State to limit use of the State's own natural resources to that State's residents. See, e. g., Hughes v. Oklahoma, 441 U. S. 322, 338 (1979). But in other cases, we have upheld just such preferential access. See, e. g., Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 955-957 (1982); cf. Baldwin v. Fish and Game Comm'n of Mont., 436 U. S. 371 (1978). Again, the distinctions turned on often subtle policy judgments, not the text of the Constitution.
In my view, none of this policy-laden decisionmaking is proper. Rather, the Court should confine itself to interpreting the text of the Constitution, which itself seems to prohibit in plain terms certain of the more egregious state taxes on interstate commerce described above, see supra, at 618, and leaves to Congress the policy choices necessary for any further regulation of interstate commerce.
Page: Index Previous 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 NextLast modified: October 4, 2007