Is “Internal Consistency” Foolish?: Reflections on an Emerging Commerce Clause Restraint on State Taxation

Whatever role “internal consistency” may come to play in the Court’s commerce clause jurisprudence, it has already emerged as a doctrine that warrants our attention. This article traces the development of the doctrine, explores its implications, and considers its defensibility as a limitation on state taxing power. The article suggests that the results the Court reaches under the “internal consistency” doctrine could be reached by rigorous application of a more familiar commerce clause principle – one to which the Court has been less than faithful.