Though it’s a state government leading the charge, the good justification for changing the law isn’t the one in the state’s interest. I see two complaints here:
- The state government wants more revenue. Online sales generally lower the amount of in-state sales, so the sales tax revenue is reduced.
- Physical retailers have to charge more than online retailers because of the sales tax boosting their effective prices. This gives buyers an extra incentive to buy online.
Complaint 2 is pretty reasonable. Unless we’re looking to give online sellers an edge for the sake of stomping out physical sellers, then the current situation is needlessly unfair. But there’s two ways to make it more fair. One is to add sales taxes to online purchases. The other is to destroy sales taxes entirely. Given sales taxes are a regressive, anti-demand tax, that second option is a lot nicer.
This second, better option would aggravate complaint 1 even further, but unlike sellers who only acquire revenue via selling things, state governments have other, better options. They can tax for land use. They can have progressive income or wealth taxes.
One comment in the linked WSJ article made a decent point against 1, as well: sellers without a physical location in the state are consuming less of the state resources. They aren’t taking up space, polluting the air and water, creating garbage, and otherwise creating various negative externalities for the state.
(Of course, the current court case can, officially, only be decided by what the current legal documents say rather than what they should say, and some analysis of the constitution suggests the status quo will be upheld. Though even the linked analysis then suggests that actual legislative changes should be made. The interstate commerce stuff is somewhat interesting, but a bigger hammer seems more appropriate here.)
Noah Feldman wrote in response to calls to amend the US Constitution to repeal or otherwise fix the second amendment. He makes an interesting point about antiquity serving to protect some rights. If some instance of government wanted to curtail certain rights, it would have to go through the amendment process (assuming it doesn’t just burn the Constitution—this only works for slow-moving evil). Even though valuing the older rules just because they’re older is in itself ridiculous, taking it as a value adds a line of defense to the older rules. So if the older rules are particularly good, then taking that value can be a good strategic move. The value does demand they be taken as a whole, though, so the ten amendments from 1791 come as a package deal.
Feldman seems to have some other motives in mind, though:
But amending the Constitution just because the Supreme Court may have taken its interpretation too far would undercut the very idea that the justices have the authority to interpret the Constitution to apply and expand basic rights. Live by the judicial interpretation, die by the judicial interpretation.
The interpretation is of existing legislation. What Feldman is proposing sounds like giving the court final authority on what ought to be done, rather than how to read the laws. Amending the Constitution because the court reveals the official reading says some undesireable things is completely respecting the idea that the justices have the authority to interpret the Constitution.
Take an analogous example to illustrate. Ava goes to the store with a 25% off coupon. Then she sees a rack of items for 30% off. She goes to check out expecting a 55% discount. But then it rings up with only a 47.5% discount. She asks what gives and the shopkeeper says the discounts are taken in succession, not added together. If she were to argue, that would be not respecting the interpretation of the shopkeep. If she acknowledges what the shopkeep says but then decides in light of the new information to change her action and not buy the item, then she’s respecting the interpretation.
He’s suggesting “wild” ideas like offering very low sentences instead of caging people for extended periods of time. And recourse for people being wrongly punished.
Sometimes people create and freeze embryos. Often these people are married. Sometimes they divorce after the creation but without bringing them to term. Then sometimes one partner wants to bring them to term and the other wants them destroyed. Courts get involved.
The arguments made for leaning towards the one favoring keeping them alive invoke the personhood of the embryo. This strikes me as rather odd given, as a general rule, you’re not allowed to freeze people indefinitely against their will. If you really believe it’s a person, you don’t freeze it and then decide later if and when to let it resume living. So, this argument strikes me as a dishonest, ad hoc rationalization for one’s right to force another into parenthood.
(Another prominent argument is that by going forth with the plan to create the frozen embryos, one has already consented to becoming a parent. I simply ask where that came from. Freezing the embryos seems like a pretty clear decision to not be a parent (or parent to another child) at the moment but to instead postpone the decision.)