Business and Constitutional Originalism in the Roberts Courts

In this essay, I briefly explore Robert Courts cases in two areas where business law intersects with my primary field of scholarship, the United States Constitution. Specifically, I examine the extent to which the two newest Justices, Chief Justice Roberts and Justice Alito, have seemed unwilling to embrace the stances articulated by the two Justices most often associated with the interpretive philosophy of originalism, Justices Thomas and Scalia. My examination takes place in the context of the limits the Constitution has been held to place on punitive damages and on state commercial regulation that runs afoul of the so-called "dormant Commerce Clause" idea. I then discuss a few reasons why, at least in the dormant Commerce Clause setting but perhaps more generally as well, the strong form of constitutional originalism embraced by Justice Thomas--and to a slightly lesser degree, Justice Scalia--might not be entirely appealing to newcomers.