636
Thomas, J., dissenting
that the case was one of inter-state commerce," 8 Wall., at 137, is harder to sustain. The Almy Court expressly noted that Mr. Almy was charged with failing to pay the stamp tax on a bill of lading for "a quantity of gold-dust for transportation to New York" from San Francisco, 24 How., at 172, and the explicit "question presented by the case" was whether a State had a right "to tax such instruments when used in commerce among the States," Brief for Plaintiff in Error in Almy v. California, D. T. 1860, No. 23, pp. 1-2 (emphasis added); see also id., at 3 (referring to fact that the tax was on bills of lading "for exports to other States"). Woodruff's rejection of Brown and Almy—precedent which better reflected the historical record and common usage of the Clause's words—was thus highly questionable.
In sum, it would seem that Woodruff was, in all likelihood, wrongly decided. Of course, much of what the Import-Export Clause appears to have been designed to protect against has since been addressed under the negative Commerce Clause. As the majority recognizes, discriminatory state taxation of interstate commerce is one of the core pieces of our negative Commerce Clause jurisprudence. Ante, at 581. Were 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. Indeed, our rule that state taxes that discriminate against interstate commerce are virtually per se invalid under the negative Commerce Clause may well approximate the apparent prohibition of the Import-Export Clause itself. But, as already described, without the proper textual roots, our negative Commerce Clause has gone far afield of its core—and we have yet to articulate either a coherent rationale for permitting the courts effectively to legislate in this field, or a workable test for assessing which state laws pass negative Commerce Clause muster. Precedent as unworkable as our negative Commerce Clause jurisprudence has become is simply not entitled to the weight of stare decisis. See Holder
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