SUPREME COURT OF THE UNITED STATES
CAMPS NEWFOUND/OWATONNA, INC., PETITIONER v. TOWN OF HARRISON,
MAINE, et al.
on writ of certiorari to the Supreme Judicial Court of Maine
[May 19, 1997]
Justice Thomas, with whom Justice
Scalia joins, The tax at issue here is a tax on real estate, the quintessential
asset that does not move in interstate commerce. Maine exempts from its
otherwise generally applicable property tax, and thereby subsidizes, certain
charitable organizations that provide the bulk of their charity to Maine's own
residents. By invalidating Maine's tax assessment on the real property of
charitable organizations primarily serving non Maine residents, because of the
tax's alleged indirect effect on interstate commerce, the majority has
essentially created a "dormant" Necessary and Proper Clause to
supplement the "dormant" Commerce Clause. This move works a
significant, unwarranted, and, in my view, improvident expansion in our "dormant,"
or "negative," Commerce Clause jurisprudence.
For that reason, I join JusticeScalia's dissenting opinion.
I write separately, however, because I believe that the improper expansion
undertaken today is possible only because our negative Commerce Clause
jurisprudence, developed primarily to invalidate discriminatory state taxation
of interstate commerce, was already both overbroad and unnecessary. It was
overbroad because, unmoored from any constitutional text, it brought within the
supervisory authority of the federal courts state action far afield from the
discriminatory taxes it was primarily designed to check. It was unnecessary
because the Constitution would seem to provide an express check on the
States' power to levy certain discriminatory taxes on the commerce of other
States — not in the judicially created negative Commerce Clause, but in the
Article I, §10 Import Export Clause, our decision in Woodruff v.
Parham, 8 Wall. 123 (1869), notwithstanding. That the expansion
effected by today's decision finds some support in the morass of our negative
Commerce Clause caselaw only serves to highlight the need to abandon that failed
jurisprudence and to consider restoring the original Import Export Clause check
on discriminatory state taxation to what appears to be its proper role. As I
explain in Part III, the tax (and tax exemption) at issue in this case seems
easily to survive Import Export Clause scrutiny; I would therefore, in all
likelihood, sustain Maine's tax under that Clause as well, were we to apply it
instead of the judicially created negative Commerce Clause.
The negative Commerce Clause has no basis in the text of the Constitution,
makes little sense, and has proved virtually unworkable in application. See,
e.g., Tyler Pipe Industries, Inc. v. Washington State Dept.
232, 259-265 (1987) (Scalia, J., dissenting); Bendix Autolite Corp.
v. Midwesco Enterprises, Inc.,
888, 895-898 (1988) (Scalia, J., concurring in judgment). In one fashion or
another, every Member of the current Court [n.2]
and a goodly number of our predecessors
at least recognizedthese problems, if not been troubled by them.
the expansion effected by today's holding further undermines the delicate
balance in what we have termed "Our Federalism," Younger v.
37, 44 (1971), I think it worth revisiting the underlying justifications for
our involvement in the negative aspects of the Commerce Clause, and the
compelling arguments demonstrating why those justifications are illusory.
To cover its exercise of judicial power in an area for which there is no
textual basis, the Court has historically offered two different theories in
support of its negative Commerce Clause jurisprudence. The first theory posited
was that the Commerce Clause itself constituted an exclusive grant of
power to Congress. See, e.g., Passenger Cases, 7 How. 283,
393-400 (1849). [n.5]The "exclusivity" rationale was likely wrong from the
outset, however. See, e.g., The Federalist No. 32, p. 154 (M. Beloff ed.
1987) (A. Hamilton) ("[N]otwithstanding the affirmative grants of general
authorities, there has been the most pointed care in those cases where it was
deemed improper that the like authorities should reside in the states, to insert
negative clauses prohibiting the exercise of them by the states").
[n.6] It was
seriously questioned even in early cases. See License Cases, 5 How. 504,
583, 615, 618, 624 (1847) (Four, and arguably five, of the seven participating
Justices contending that the Commerce Clause was not exclusive). And, in any
event, the Court has long since "repudiated" the notion that the
Commerce Clause operates as an exclusive grant of power to Congress, and thereby
forecloses state action respecting interstate commerce. Freeman v. Hewit,
249, 259, 262 (1946) (Rutledge, J., concurring); see also, e.g.,
Southern Pacific Co. v.Arizona ex rel. Sullivan,
761, 766-767 (1945) ("Ever since Willson v. Black Bird
Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of
Wardens, 12 How. 299, it has been recognized that, in the absence of
conflicting legislation by Congress, there is a residuum of power in the state
to make laws governing matters of local concern which nevertheless in some
measure affect interstate commerce or even, to some extent, regulate it");
James v. Watt, 716 F. 2d 71, 73 (CA1 1983) (Breyer, J.) (noting
that "the strong Madison/Marshall `preemptive' view of the Interstate
Commerce Clause is no longer the law of the land"), cert. denied,
1209 (1984). [n.7]
Indeed, the Court's early view that the Commerce Clause, on its own,
prohibited state impediments to interstate commerce such that "Congress
cannot re grant, or in any manner reconvey to the states that power," Cooley
v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of
Distressed Pilots, 12 How. 299, 318 (1852), quickly proved untenable.
Compare Pennsylvania v. Wheeling & Belmont Bridge Co.,
13 How. 518 (1852) (holding that construction of the Wheeling Bridgeimpeded
commerce in violation of the Commerce Clause), with Pennsylvania v. Wheeling
& Belmont Bridge Co., 18 How. 421, 426 (1856) (upholding Federal
Act that declared the Wheeling Bridge to be "[a] lawful structur[e]");
see also Transportation Co. v. Parkersburg,
691, 701 (1883) ("It is Congress, and not the Judicial Department, to
which the Constitution has given the power to regulate commerce").
this Court's definition of the scope of congressional authority under the
positive Commerce Clause has expanded, the exclusivity rationale has moved from
untenable to absurd.
The second theory offered to justify creation of a negative Commerce Clause
is that Congress, by its silence, pre empts state legislation. See Robbins
v. Shelby County Taxing Dist.,
489, 493 (1887) (asserting that congressional silence evidences
congressional intent that there be no state regulation of commerce). In
other words, we presumed that congressional "inaction" was "equivalent
to a declaration that inter State commerce shall be free and untrammelled."
Welton v. Missouri,
275, 282 (1876). To the extent that the "preemption by
silence" rationale ever made sense, it too has long since been rejected by
this Court in virtually every analogous area of the law.
For example, ever since the watershed case of Erie R. Co. v. Tompkins,
64 (1938), this Court has rejected the notion that it can create a federal
common law to fill in great silences left by Congress, and thereby pre empt
state law. We have recognized that "a federalcourt could not generally
apply a federal rule of decision, despite the existence of jurisdiction, in the
absence of an applicable Act of Congress." Milwaukee v. Illinois,
304, 313 (1981). [n.9]
The limited areas in which we have created federal common law typically
involve either uniquely federal issues or the rights and responsibilities of the
United States or its agents. See Texas Industries, Inc. v. Radcliff
630, 641 (1981). But where a federal rule is not essential, or where state
law already operates within a particular field, we have applied state law rather
than opting to create federal common law. See United States v.
Kimbell Foods, Inc.,
715, 730 (1979) (rejecting "generalized pleas for uniformity" as a
basis for creating federal common law); see also Atherton v. FDIC,
519 U. S. ___, ___ (1997) (slip op., at 12) (same).
Similarly, even where Congress has legislated in an area subject to
its authority, our pre emption jurisprudence explicitly rejects the notion that
mere congressional silence on a particular issue may be read as pre empting
"As is always the case in our pre emption
jurisprudence, where `federal law is said to bar stateaction in fields of
traditional state regulation . . . we have worked on the "assumption that
the historic police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Congress." ' "
California Div. of Labor Standards Enforcement v. Dillingham
Constr. N. A., Inc., 519 U. S. ___, ___ (1997) (slip op., at 8) (citations
See also, Jones v. Rath Packing Co.,
519 (1977) (same); Rice v. Santa Fe Elevator Corp.,
218 (1947) (same).
To be sure, we have overcome our reluctance to pre empt state law in two
types of situations: (1) where a state law directly conflicts with a federal
law; and (2) where Congress, through extensive legislation, can be said to have
pre empted the field. See Gade v. National Solid Wastes
88, 98 (1992). But those two forms of pre emption provide little aid to
defenders of the negative Commerce Clause. Conflict pre emption only applies
when there is a direct clash between an Act of Congress and a state statute, but
the very premise of the negative Commerce Clause is the absence of
Field pre emption likewise is of little use in areas where Congress has
failed to enter the field, and certainly does not support the general
proposition of "preemption by silence" that is used to provide a
veneer of legitimacy to our negative Commerce Clause forays. Furthermore, field
pre emption is itself suspect, at least as applied in the absence of a
congressional command that a particular field be pre empted. Perhaps recognizing
this problem, our recent cases have frequently rejected field pre emption in the
absence of statutory language expressly requiring it. See, e.g.,
O'Melveny & Myers v. FDIC,
79, 85 (1994) ("Nor would we adopt a court made rule to supplement
federal statutory regulation that is comprehensive and detailed; mattersleft
unaddressed in such a scheme are presumably left subject to the disposition
provided by state law"). Even when an express pre emption provision has
been enacted by Congress, we have narrowly defined the area to be pre empted.
See, e.g., Dillingham, supra, at ___ (slip op., at 7-8); Cipollone
v. Liggett Group, Inc.,
504, 517 (1992).
In the analogous context of statutory construction, we have similarly
refused to rely on congressional inaction to alter the proper
construction of a pre existing statute. See Central Bank of Denver, N. A.
v. FirstInterstate Bank of Denver, N. A.,
164, 180-185 (1994). And, even more troubling, the "preemption by
silence" rationale virtually amounts to legislation by default, in apparent
violation of the constitutional requirements of bi cameralism and presentment.
Cf. INS v. Chadha,
919, 951-959 (1983). Thus, even were we wrongly to assume that congressional
silence evidenced a desire to pre empt some undefined category of state laws,
and an intent to delegate such policy laden categorization to the courts,
treating unenacted congressional intent as if it were law would be
In sum, neither of the Court's proffered theoretical justifications
— exclusivity or preemption by silence — currently supports our
negative Commerce Clause jurisprudence, if either ever did. Despite the collapse
of its theoretical foundation, I suspect we have nonetheless adhered to the
negative Commerce Clause because we believed it necessary to check state
measures contrary to the perceived spirit, if not the actual letter, of
the Constitution. Thus, in one of our early uses of the negative Commerce
Clause, we invalidated a state tax on the privilege of selling goods "which
are not the growth, produce, or manufacture of the State." Welton
275, 278 (1876). And in Cook v. Pennsylvania,
566 (1878), we struck down a state tax on out of state goods sold at
auction. See also,e.g., I. M. Darnell & Son Co. v. Memphis,
113 (1908) Voight v. Wright,
62 (1891); Walling v. Michigan,
446 (1886); Webber v. Virginia,
344 (1881). To this day, we find discriminatory state taxes on out of state
goods to be "virtually per se invalid" under our negative
Commerce Clause. See, e.g., West Lynn Creamery, Inc. v. Healy,
186 (1994); Associated Industries of Mo. v. Lohman,
641 (1994); New Energy Co. of Ind. v. Limbach,
269 (1988); Maryland v. Louisiana,
725 (1981). Though each of these cases reached what intuitively seemed to be
a desirable result — and in some cases arguably was the constitutionally
correct result, as I describe below — the negative Commerce Clause
rationale upon which they rested remains unsettling because of that rationale's
lack of a textual basis.
Moreover, our negative Commerce Clause jurisprudence has taken us well
beyond the invalidation of obviously discriminatory taxes on interstate
commerce. We have used the Clause to make policy laden judgments that we are ill
equipped and arguably unauthorized to make. See Moorman Mfg. Co. v. Bair,
267, 278-280 (1978) (recognizing that establishing a formula for
apportioning taxes on multistate corporations would require "extensive
judicial lawmaking" for which the courts are ill suited). In so doing, we
have developed multifactor tests in order to assess the perceived "effect"
any particular state tax or regulation has on interstate commerce. See Complete
Auto Transit, Inc. v. Brady,
274 (1977); see also Quill Corp. v. North Dakota,
298 (1992). And in an unabashedly legislative manner, we have balanced that "effect"
against the perceived interests of the taxing or regulating State, as the very
description of our "general rule" indicates:
"Where the statute regulates even
handedly to effectuate a legitimate local public interest, and itseffects on
interstate commerce are only incidental, it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local
benefits. Huron Portland Cement Co. v. Detroit,
440 (1960). If a legitimate local purpose is found, then the question
becomes one of degree. And the extent of the burden that will be tolerated will
of course depend on the nature of the local interest involved, and on whether it
could be promoted as well with a lesser impact on interstate activities."
Pike v. Bruce Church, Inc.,
137, 142 (1970)
Any test that requires us to assess (1) whether a particular statute serves
a "legitimate" local public interest; (2) whether the effects of the
statute on interstate commerce are merely "incidental" or "clearly
excessive in relation to the putative benefits"; (3) the "nature"
of the local interest; and (4) whether there are alternative means of furthering
the local interest that have a "lesser impact" on interstate commerce,
and even then makes the question "one of degree," surely invites us,
if not compels us, to function more as legislators than as judges. See Bendix
Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S., at 897-898
(Scalia, J., concurring in judgment) (urging abandonment of the Pike
balancing test so as to "leave essentially legislative judgments to the
Moreover, our open ended balancing tests in this area have allowed us to
reach different results based merely "on differing assessments of the force
of competing analogies." Oklahoma Tax Comm'n v. Jefferson
175, 197, 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,
617 (1978), and its progeny, on the one hand, and Bowman v. Chicago
& Northwestern R. Co.,
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,
131 (1986); Asbell v. Kansas,
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,
322, 338 (1979). But in other cases, we have upheld just such preferential
access. See, e.g., Sporhase v. Nebraska ex rel. Douglas,
941, 955-957 (1982); cf. Baldwin v. Fish and Game Comm'n of
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 , and leaves
to Congress the policy choices necessary for any further regulation of
Article I, §10, cl. 2 of the Constitution provides that "[n]o
State shall, without the Consent of the Congress,lay any Imposts or Duties on
Imports or Exports . . . ." To the 20 century reader, the Clause appears
only to prohibit States from levying certain kinds of taxes on goods imported
from or exported to foreign nations. But a strong argument can be made
that for the Constitution's Framers and ratifiers — representatives of
States which still viewed themselves as semi independent sovereigns — the
terms "imports" and "exports" encompassed not just trade
with foreign nations, but trade with other States as well.
The late Professor William Crosskey, in a persuasive treatment of this
subject nearly a half century ago, unearthed numerous Founding era examples in
which the word "import" referred to goods produced in other States.
See W. Crosskey, The True Meaning of the Imports and Exports Clause: Herein of "Interstate
Trade Barriers" in 1787, 1 Politics and the Constitution in the History of
the United States 295-323 (1953). Crosskey recounts, for example, that merchants
frequently published advertisements in the local newspapers announcing recent
shipments of such "imported" goods as "Philadelphia Flour," "Carolina
Rice," and "Connecticut Beef." Id., at 298.
the word "export" wasused to refer to goods shipped both to other
States and abroad. One writer, for example, urged his fellow Connecticut
citizens to manufacture stockings in sufficient quantity not only for the supply
of Connecticut "but for exportation to other States" as well.
Letter from "A. C.," The Massachusetts Centinel, Sept. 5, 1787, p. 1,
col. 1 (reprinted from New Haven Gazette) (emphasis added). Another argued that
Connecticut could enrich itself "[b]y making and refining Cyder for
exportation with which we might supply the
Southern States, as well as the large provinces of Quebec and Nova
Scotia." The Connecticut Farmer, New Haven Gazette, Oct. 6, 1785, p. 2,
col. 3 (second and third emphases added).
More significantly, the early statute books are replete with examples of
these commonplace 18th century understandings of the terms "import"
and "export." The Virginia cheese duty Act of October 1786, for
example, provided for a duty of "three pence a pound on all cheese . . .
imported into this commonwealth." 12 Hening, Virginia Statutes at
Large, ch. 29, §2, p. 289 (emphasis added). As complaints published in New
England newspapers indicate, that duty was imposed on cheese produced by the New
England States. See The Salem [Mass.] Mercury, Mar. 3, 1787, p. 2, col. 2.
Moreover, the duty was but one of many imposed by Virginia, which had for some
time, it seems, "imposed like duties upon the importation of New England
rum, Lynn [Mass.] Shoes, Cheese, Cordage, and a variety of other articles
manufactured in the Eastern States." The Independent Chronicle [Boston],
Apr. 19, 1787, p. 3, col. 2; see 11 Hening, Virginia Statutes at Large, ch. 8, §8,
pp. 121-122 (Oct. 1782) (imposing a tonnage duty "on all vessels . . . from
or to foreign parts, or from or to anyof the United States," and an impost
duty on goods "imported or brought into this commonwealth . . . from any
port or place whatsoever").
Maryland, for its part, taxed certain "articles exported out of"
the State, including flour shipped to New England. 1784 Md. Laws, ch. 84, §1;
see also Letter from "A Citizen," The Norwich [Conn.] Packet, Jan. 17,
1788, p. 1, col. 1 ("The New England States have imported, for four years
past, from the State of Maryland, upwards of twenty five thousand barrels of
flour annually — on which they have been obliged to pay a duty for the
liberty of exportation"). And, when it provided for the inspection of
salted foods "exported and imported from and to the town of Baltimore,"
Maryland expressly included salted foods "brought or imported into the said
town, from any part of this state, or any one of the United States, or from any
foreign port whatever." 1786 Md. Laws, ch. 17, §5.
In similar fashion, Connecticut adopted an excise tax that distinguished
between "imported Chocolate," taxed at three pence per pound, and "Chocolate
made within this State," taxed at one Penny per pound. 1783 Conn. Acts and
Laws 619. And in May 1784, Connecticut adopted an import duty that expressly
applied to certain enumerated articles "imported or brought into this
State, by Land or Water, from any of the United States of America." 1784
Conn. Acts and Laws 271. [n.11]
In fact, when state legislators of the founding generation intended to
limit the term "imports" only to goods of foreign origin, they were
quite adept at so indicating. See 1784 Conn. Acts and Laws 269 (provision
regarding merchants "who shall import annually into [New London or New
Haven] from Europe, Asia or Africa, Goods, Wares and Merchandise, the Growth,
Produce or Manufacture of said Countries"); id., at 270 (setting
duties for "Goods imported into this State from any Foreign Port, Island or
Plantation not within any of The United States"); 2 New York Laws, ch. 7,
p. 12 (1886) (Act of Nov. 18, 1784, setting duties for certain "articles
imported from Europe"). Thus, based on this common 18th century
usage of the words "import" and "export," and the lack of
any textual indication that the Clause was intended to apply exclusively to
foreign goods, it seems likely that those who drafted the Constitution sought,
through the Import Export Clause, to prohibit States from levying duties and
imposts on goods imported from or exported to other States as well as foreign
nations, and that those who ratified the Constitution would have so understood
Our Civil War era decision in Woodruff v. Parham, 8
Wall. 123 (1869), of course, held that the Import Export Clause applied only to
foreign trade. None of the parties to these proceedings have challenged that
holding, but given that the common 18th century understanding of the words used
in the Clause extended to interstate as well as foreign trade, it is worth
assessing the Woodruff Court's reasoning with an eye toward
reconsidering that decision in an appropriate case.
The Woodruff Court began with a textual argument, contending that
the power to levy "imposts" given to Congress in Art. I, §8, cl.
1 applied only to foreign imports. Such a limited reading of the word "imposts"
in that Clause was necessary, the Court claimed, because any other reading
would be nonsensical: Goods "imported" by one State from another
State, explained the Court, would be an "export" of the State where
the goods were produced or grown, and the supposed power given to Congress in
Art. I, §8 to levy an "impost" on such "imports" would
be prohibited by the Art. I, §9 provision that "[n]o Tax or Duty shall
be laid on Articles exported from any State." This apparent tension
between §8 and §9 led the Court to believe that the word "imposts"
in §8 must be read as applying only to foreign imports in order to avoid a
partial negation of the Art. I, §8 power. The Court then extrapolated from
this reading that the word "impost" in Art. I, §10 similarly had
the same limited application to foreign imports. As we have already seen,
however, see supra, at , the word "import" derived its meaning
from the jurisdiction into which goods were imported; consequently, it does not
necessarily follow that the imports on which Congress was given the power to lay
"imposts" in Art. I, §8 were identical to the imports and exports
on which the several States were prohibited from levying-Imposts or Duties"
by Art. I, §10. [n.12]
The Woodruff Court bolstered its textual argument with two further
arguments, neither of which appear still to be valid, if ever they were: First,
that in the history of the Constitution's formation and adoption, "the
words imports and imposts were used with exclusive reference to articles
imported from foreign countries," id., at 133 (emphasis added), and
second, the policy concern that goods imported from other States would be
forever exempt from tax if the Clause were read to apply to interstate imports.
As to the first nontextual argument, the Woodruff Court was
selective in its use of history, to say the least. It first asserted that, in
Articles VI and IX of the Articles of Confederation, the words "imports,
exports, and imposts are used with exclusive reference to foreign trade, because
[those articles] have regard only to the treaty making power of the federation."
Id., at 134. Even if the Woodruff Court's assertion was
accurate as to Articles VI and IX, which is doubtful,
Article IVcannot be so read. That Article expressly permitted "duties"
and "impositions" to be levied on property removed from one State to
another, as long as the property was not owned by "the United States, or
either of them." [n.14]
The Woodruff Court next turned to the use of the words "duty"
and "import" in the Continental Congress. The Court noted that the
Continental Congress recommended that the States give it permission to levy a
duty of five percent on all "foreign merchandise imported into the country,"
and that, though "imperfectly . . . preserved," the debates in the
Congress "are full of the subject of the injustice done by the States who
had good seaports, by duties levied in those ports on foreign goods designed for
States who had no such ports." Id., at 134.
There is, of course, no question that the ability of seaport States to tax
the foreign imports of their neighbors was a source of discord between the
States, and continued to be so through the Constitutional Convention itself.
In order to support its contention, however, the Woodruff Court
was obligated to show not merely that the words "duty," "impost,"
and "imports" were used in reference to foreign goods, but that
foreign goods were the exclusive reference. Contrary to the Woodruff
Court's claim, the historical record does not appear to support such an
exclusive use of the words.
The records of the Continental Congress contain numerous examples of the
words "duty," "impost," and "import" being used
with reference to interstate trade. In 1785, for example, in response to the
increasing animosities between the states engendered by conflicting interstate
trade regulations, an amendment to the Articles of Confederation was proposed
that would have vested in the Continental Congress the power to lay "such
imposts and duties upon imports and exports, as may be necessary for the purpose"
of "regulating the trade of the States, as well with foreign Nations, as
with each other." 28 Journals of the Continental Congress, Mar. 28,
1785, p. 201 (1933) (emphasis added). Two provisos within the proposed amendment
further suggest that interstate imports and exports were very much within the
purview of the amendment: First, %that the Citizens of the States shall
in no instance be subjected to pay higher imposts and duties, than those imposed
on the subjects of foreign powers"; and second, %that
theLegislative power of the several States shall not be restrained from
prohibiting the importation or exportation of any species of goods or
commodities whatsoever." Ibid.
As early as 1779, the problems posed by interstate trade barriers
had become acute enough to warrant a request by the Continental Congress urging
the States "to repeal all laws or other restrictions laid on the inland
trade between the said states." Resolution of Aug. 25, 1779, 14 Journals of
the Continental Congress 986; id., at 996 (adopting resolution). While
this particular resolution does not use the words "duties" or "imports,"
it seems evident from a survey of the statutory "duties" being levied
by some States on goods "imported" from other States, see supra,
at ", that the resolution was directed at just such duties on imports from
Many of the States ignored the request, of course, and their "rival,
conflicting and angry regulations," continued to be a source of conflict
until the new Constitution went into effect. See Madison, Preface to Debates in
the Convention of 1787 (Draft), circa 1836, in 3 Farrand 547; see also,
e.g., William Ellery to Samuel Dick, Aug. 2, 1784, in 7 Letters of
Members of the Continental Congress 579 (E. Burnett ed., 1934) (hereinafter
Burnett's Letters) (predicting that Rhode Island would not agree to the national
impost requested by the Congress in 1781 "until the States shall have
agreed not to lay any duties upon goods imported into them from
any one of their Sister States; perhaps not then") (emphasis added);
William Samuel Johnson to Jonathan Sturges (draft), Jan. 26, 1785, in 8
Burnett's Letters 13 (noting that the Continental Congress was considering
asking the States "to invest Congress with the Power of regulating their
Trade as well with foreign Nations as with each other," a move
which "might probably overturn the System [of "duties" on "imported"
goods, see supra,at ] Conn[ecticu]t has adopt'd as relat[iv]e to
N Y which it is said she will counteract by regulat[ion]s of her Assembly now
convening") (emphasis in original).
In fact, the animosity engendered by the various duties levied on imports
from other States was one of the motivating factors leading to the Annapolis
Convention of 1786. See T. Powell, Vagaries and Varieties in Constitutional
Interpretation 182 ("When the Framers spoke in 1787, the states were
substantially sovereign, and their exercises of sovereign powers in adversely
affecting trade from sister states was one of the factors leading to the
Annapolis conference"). As noted by Tench Coxe, one of the Pennsylvania
Commissioners appointed to attend the Convention, "Goods of the growth
product and manufacture of the Other States in Union were [in several of the
States] charged with high Duties upon importation into the enacting State —
as great in many instances as those imposed on foreign Articles of the same
Kinds." Coxe, Letter to the Virginia Commissioners at Annapolis, Sept. 13,
1786, reprinted in 9 The Papers of James Madison 125 (Rutland ed. 1975). Coxe
thought the very purpose of the Annapolis Convention had been "[t]o procure
an alteration" of this and other practices, which were, he added, "evidently
opposed to the great principles and Spirit of the Union." Ibid.
Similarly, one of the first criticisms leveled against the Articles of
Confederation during the ensuing Federal Convention was the general Government's
inability to prevent "quarrels between states," including those
arising from the various "duties" the States imposed upon each other,
both on foreign goods moving through the seaport States and on each other's
goods. See 1 Farrand 19, 25 (Edmund Randolph, May 29); see also Madison, Preface
to Debates in the Convention of 1787 (draft), circa 1836, in 3 Farrand
547-548 ("Some of the States, as Connecticut, taxed imports as from
Masstshigher than imports even from G. B. of w[hi]ch Massts. complained to
Virga. and doubtless to other States").
While the focus of the Convention quickly moved beyond the mere abolition
of trade barriers, of course, there are passages in the available Convention
debates which indicate that interstate trade barriers remained a concern, and
that the words of the Import Export Clause applied to interstate as well as to
foreign trade. George Mason, for example, proposed to exempt from the Import
Export Clause prohibition duties necessary for the States' execution of their
inspection laws. Otherwise, he argued, the "restriction on the States would
prevent the incidental duties necessary for the inspection & safe keeping of
their produce, and be ruinous to the [Southern] Staple States." 2 Farrand
588 (Sept. 12). James Madison seconded the motion, and his comment that any
feared abuse of the power to levy duties on exports for inspection purposes was
perhaps best guarded against by "the right in the Genl. Government to
regulate trade between State & State," id., at 588-589
(emphasis added), strongly suggests that exports to other States were within the
Clause's reach. [n.15]
These references to duties on interstate imports and exports are
bolstered by several more in the ratification debates. See, e.g., 2 J.
Elliot, Debates on the Federal Constitution 57-58 (2d ed. 1891) (Dawes,
Massachusetts ratifying convention) ("As to commerce, it is well known that
the different states now pursue different systems ofduties in regard to each
other. By this, and for want of general laws of prohibition through the Union,
we have not secured even our own domestic traffic that passes from state to
state") (original emphasis deleted). Indeed, one of the principal Anti
Federalist complaints against the new Constitution was that States were
prohibited from laying any duties or imposts on imports or exports, a
prohibition that, in their view, left only direct taxation as a means for the
States to support their own governments. See, e.g., Brutus 1, Oct. 18,
1787, in 13 The Documentary History of the Ratification of the Constitution 415
(J. Kaminsky & G. Saladino eds. 1981) (Doc. Hist.) ("No state can . . .
lay any duties, or imposts, on imports, or exports . . . [T]he only mean
therefore left, for any state to support its government and discharge its debts,
is by direct taxation"). [n.16]This complaint overstates the case somewhat — States
could still levy excises, and duties other than those on imports and exports.
e.g., The Federalist No. 32, p. 151 (M. Beloff ed. 1987) (A. Hamilton) ("([W]ith
the sole exception of duties on imports and exports)[, States] would, under the
plan of the convention, retain [the] authority [to raise theirown revenues] in
the most absolute and unqualified sense"). But it does suggest that the
Anti Federalists, at least, viewed the Import Export Clause as prohibiting all
other state taxes, including the duties then in place on goods imported from
neighboring States. And moves in various States shortly after the Constitution's
ratification to repeal the offending duties on interstate trade support the Anti
Federalist view. Compare An Act repealing the Laws made for levying and
collecting a Duty on Articles imported into this State, 1789 Conn. Acts and Laws
377 (Jan. 1789), with, e.g., An Act for levying and collecting Duties on
the Importation of certain Articles, and for appropriating the same, 1784 Conn.
Acts and Laws 309 (Oct. 1784) (providing for, inter alia, a duty of three pence
"on each Pound of Sugar . . . whether the Produce or Manufacture of the
United States, or not, imported into this State").
Justice Nelson, of course, pointed out in his Woodruff dissent that
a lack of "security or protection" against "obstructions and
interruptions of commerce among the States" was "one of the principal
grievances that led to the Convention of 1787, and to the adoption of the
Federal Constitution." Woodruff, 8 Wall., at 140-141. But he seems
not to have had in his arsenal many of the historical materials cited above,
which indicate that the words used in the Import Export Clause
encompassed, at the time the Constitution was written, both interstate and
foreign trade. [n.17]Indeed, the Woodruffmajority itself felt compelled to
note that its "research [had] extended" only so far as permitted by "the
discussions on this subject, as they have come down to us from that time."
Id., at 136; see also id., at 134 (referring to the "imperfectly
. . . preserved" discussions of the Continental Congress). Whatever the
cause, the Woodruff Court's analysis of the historical usage of the
words overlooked many contrary examples and is thus not especially compelling.
The second contention that the Woodruff Court used to bolster its
textual argument was a policy concern based on an unnecessarily broad view of
the Import Export Clause's prohibition. The Woodruff Court believed that
the prohibition on "Duties or Imposts on Exports or Imports" exempted
imported articles, and the merchants who traded in them, from state taxation of
any kind, at least so long as they remained in their original packages.
Id., at 137. This view of the Clause's prohibition would result in "the
grossest injustice," said the Court, were the Clause to be read as applying
to "articles brought from one State into another," for "[n]either
the State nor the city which protects [the import merchant's] life and property
[could] make him contribute a dollar to support its government." Ibid.
Woodruff's broad reading of the Clause's prohibition was explicitly
adopted three years later in Low v. Austin, 13 Wall. 29
(1872), a case involving foreign imports. But we expressly overruled Low
20 years ago, in Michelin Tire Corp. v. Wages,
276, 279 (1976), holding that the Import Export Clause "cannot
be read to accord imported goods preferential treatment that permits escape from
uniform taxes imposed withoutregard to foreign origin for services which the
State supplies," id., at 287; cf. United States v.
International Business Machines Corp., 517 U. S. ___, ___ (1996) (slip
op., at 14-16) (distinguishing Art. I, §9, cl. 5 Export Clause, which bars
the United States from imposing any tax on exports, from the Import
Export Clause, which prohibits States from levying only duties and imposts).
While Michelin and
Low dealt with foreign imports, the expansive
interpretation of the Import Export Clause's prohibition rejected by Michelin
was the same interpretation that gave the Woodruff Court pause and
that seems to have been an impetus to its refusal to read the Clause as
applying to imports from other States. Thus, after Michelin, the second
argument the Woodruff Court used to bolster its weak textual analysis —
that it would be a gross injustice to prohibit States from levying
any taxes on goods which were produced in other States — no longer
has any force.
There is nothing else of consequence to support the Woodruff
Court's holding. The only remaining argument made by the Woodruff
majority was that it was "improbable" that the Convention would have
permitted States to tax "imports" from other States merely with the
assent of Congress, because the revenues that would acrue to Congress by
granting such assent would prove too great a temptation for Congress to serve as
a neutral arbiter regarding such taxes. Woodruff, supra, at 133. The
Woodruff Court's speculation was without historical support, however,
and pales in comparison to the substantial evidence described above regarding
the meaning of the words in the Clause, see supra, at ".
In short, there is little in the Woodruff opinion to sustain its
holding, and its weakness is even more evident given the contrary precedent
rejected by the Woodruff Court. In Brown v. Maryland,
12 Wheat. 419, 449 (1827), Chief Justice Marshall, writing for the Court,
suggested: "[W]e suppose the principles laid down in this case [namely,
that a State license tax on importers of foreign articles was invalid both under
the Import Export Clause and the act of Congress which authorizes importation]
to apply equally to importations from a sister State." And just eight years
before Woodruff, Chief Justice Taney, writing for a unanimous Court,
struck down a stamp tax on bills of lading for gold being shipped from
California to New York, holding that "the State tax in question is a duty
upon the export of gold and silver, and consequently repugnant to the
[Import Export] clause in the Constitution." Almy v. California,
24 How. 169, 175 (1861) (emphasis added).
Chief Justice Marshall's statement in Brown was merely dicta,
of course, but the Woodruff majority's rejection of the precedential
force of Almy, based solely on its assertion that "[i]t seems to
have escaped the attention of counsel on both sides, and of the Chief Justice
who delivered the opinion, 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 transportationto 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 16. 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 v. Hall,
874, 936-937 (1994) (Thomas, J., concurring in judgment). And it is quite
possible that, were we to revisit Woodruff, we might find that the
Constitution already affords us a textual mechanism with which to address the
more egregious of State actions discriminating against interstate commerce.
Were we thus to shed ourselves of our nontextual negative Commerce Clause
and all the accompanying multi factor balancing tests we have employed, and
instead merely apply what appears to me to be the relevant provision of the
Constitution, this would seem to be a fairly straightforward case (although I
reserve final judgment of the matter for a case when the Import Export Clause is
specifically addressed by the parties). Unlike the Export Clause of Art. I, §9,
which prohibits the Congress from levying any tax on exports, the
Import Export Clause only prohibits States from levying "duties" and "imposts."
See International Business Machines, 517 U. S., at ___ (slip op., at
The Maine property tax at issue here is almost certainly not an impost,
for, as 18th century usage of the word indicates, an impost was a tax levied on
at the time of importation. See, e.g., The Observer No. XII,
The Connecticut Courant and Weekly Intelligencer, Jan. 7, 1790, p. 1, col. 2 ("[I]mpost
is a tax on merchandize, payable at the port of entry");
Bailey, An Universal Etymological English Dictionary (26 ed. 1789)
(defining "impost" as "a tax or tribute, but more especially such
as is received by a prince or state, for goods brought into any haven from other
nations"); [n.20] Michelin, supra, at 287 ("[I]mposts
and duties . . . are essentially taxes on the commercial privilege of bringing
goods into a country"). Because the tax at issue here is levied on
real property — property that cannot possibly have been "imported"
— the tax would not seem to fit within any of the commonly accepted
definitions of "impost."
"Duty," however, though frequently used like "impost"
to denote "money paid for custom of goods," An Universal Etymological
English Dictionary, supra, does not appear to have been limited to taxes
assessed at portside. See, e.g., S. Johnson, A Dictionary of the
English Language (7th ed. 1785) ("Duty . . . Tax; impost; custom; toll. All
the wines make their way through several duties and taxes, before
they reach the port") (second emphasis added); 2 Elliot 331 (John Williams,
New York ratifying convention) (noting that Congress' Art. I, §8 power "extend[s]
to duties on all kinds of goods, to tonnage and poundage of vessels, to duties
on written instruments, newspapers, almanacs, &c"). In fact, "imposts"
seems to have been viewed as a particular subclass of duties; the fact that the
two words are used disjunctively in the Import Export Clause suggests,
therefore, that something broader than portside customs was within the
Because of the somewhat ambiguous usage of thewords "duty" and "impost,"
Luther Martin inquired of their meaning during the Convention. James Wilson, a
member of the Committee on Detail, replied as follows: "[D]uties
are applicable to many objects to which the word imposts does not
relate. The latter are appropriated to commerce; the former extend to a variety
of objects, as stamp duties &c." 2 Farrand 305 (emphasis in original);
see also 2 Storing 54 (Luther Martin, in Maryland Convention, describing same
colloquy); The Fallacies of the Freeman Detected by a Farmer, Freeman's Journal,
April 1788, in 3 Storing 186-187 ("Under the term duties [in Art. I, §8],
every species of indirect taxes is included, but it especially means the power
of levying money upon printed books, and written instruments"). What seems
likely from these descriptions is that a duty, though broader than an impost,
was still a tax on particular goods or written instruments.
It is important to note, moreover, that the Martin Wilson colloquy is in
reference to the Art. I, §8 power given to Congress to levy duties. That
power is broader than the prohibition on States found in Art. I, §10, which
reaches not all duties, but only those on "imports or exports."
even without this additional limitation, one kind of tax that duties almost
certainly did not encompass were "direct" taxes, such as
property taxes and poll taxes. See, e.g., The Federalist No. 12 (A.
Hamilton) (distinguishing direct taxes, such as property taxes, from indirect
taxes, such as imposts, duties, and excises); Freeman's Journal, in 3 Storing,
supra, 186-187 ("Under the term duties [in Art. I, §8], every
species of indirect taxes is included"); see also Michelin, 423 U.
S., at 286, 290-291.
The tax at issue here is nothing more than a tax on real property. Such
taxes were classified as "direct" taxes at the time of the Framing,
and were not within the class of "indirect" taxes encompassed by the
common understanding of the word "duties." The amount of the Maine tax
is tied to the value of the real property on which it is imposed, not to any
particular goods, and not even to the number of campers served. It does not
appear, therefore, to be a "duty" on "imports" in any sense
of the words. [n.22]Even when coupled with the tax
exemption for certain Maine charities (which is, in truth, no different than
a subsidy paid out of the State's general revenues), Maine's property tax would
not seem to be a "Duty or Impost on Imports or Exports" within the
meaning of the Import Export Clause. Thus, were we to overrule Woodruff
and apply the Import Export Clause to this case, I would in all likelihood
sustain this tax under that Clause as well.
1 Although the
terms "dormant" and "negative" have often been used
interchangeably to describe our jurisprudence in this area, I believe "negative"
is the more appropriate term. See Oklahoma Tax Comm'n v. Jefferson
175, 200 (1995) (Scalia, J., joined by Thomas, J., concurring in judgment) ("[T]he
`negative Commerce Clause'. . . is `negative' not only because it negates state
regulation of commerce, but also because it does not appear in the
Constitution"). There is, quite frankly, nothing "dormant" about
our jurisprudence in this area. See Eule, Laying the Dormant Commerce Clause to
Rest, 91 Yale L. J. 425, 425, n. 1 (1982).
2 See, e.g.,
C & A Carbone, Inc. v. Clarkstown,
383, 401 (1994) (O'Connor, J., concurring in judgment) ("The scope of
the dormant Commerce Clause is a judicial creation"); Quill Corp.
v. North Dakota,
298, 309 (1992) (Stevens, J., writing for a unanimous Court) (recognizing
that the Commerce Clause "says nothing about the protection of interstate
commerce in the absence of any action by Congress"); Wyoming v.
437, 461-462 (1992) (Scalia, J., joined by Rehnquist, C. J., and Thomas, J.,
dissenting) (describing the "negative Commerce Clause" as "nontextual");
Kassel v. Consolidated Freightways Corp. of Del.,
662, 706 (1981) (Rehnquist, J., dissenting) ("[T]he jurisprudence of
the `negative side' of the Commerce Clause remains hopelessly confused ");
cf. U. S. Term Limits, Inc. v. Thornton,
779, 797, n. 12 (1995) (Stevens, J., joined by Kennedy, Souter, Ginsburg,
and Breyer, JJ.) ("[T]he Constitution is clearly silent on the subject of
state legislation that discriminates against interstate commerce").
3 See, e.g.,
Wardair Canada Inc. v.
Florida Dept. of Revenue,
477 U.S. 1,
17 (1986) (Burger, C. J., concurring in part and concurring in judgment)
(referring to "the cloudy waters of this Court's `dormant Commerce Clause'
doctrine"); Philadelphia v. New Jersey,
617, 623 (1978) (Stewart, J.) ("The bounds of [the restraints imposed
by the Commerce Clause itself, in the absence of federal legislation], appear
nowhere in the words of the Commerce Clause"); Northwestern States
Portland Cement Co. v. Minnesota,
450, 457, 458 (1959) (Clark, J.) (internal quotation marks omitted)
(referring to our negative Commerce Clause jurisprudence as a "tangled
underbrush" and a "quagmire"); H. P. Hood & Sons, Inc.
v. Du Mond,
525, 534-535 (1949) (Jackson, J.) (describing the negative Commerce Clauseas
filling in one of the "great silences of the Constitution");
McCarroll v. Dixie Greyhound Lines, Inc.,
176, 189, (1940) (Black, J., joined by Frankfurter and Douglas, JJ.,
dissenting) (criticizing the negative Commerce Clause as arising out of "[s]pasmodic
and unrelated instances of litigation [that] cannot afford an adequate basis for
the creation of integrated national rules" that "Congress alone"
is positioned to develop).
commentary, too, has been critical of our negative Commerce Clause
jurisprudence. See D. Currie, The Constitution in the Supreme Court: The
First Hundred Years 1789-1888, p. 234 (1985) (describing the negative Commerce
Clause as "arbitrary, conclusory, and irreconcilable with the
constitutional text"); see also, e.g., L. Tribe, American
Constitutional Law 439 (2d ed. 1988) ("The Supreme Court's approach to
commerce clause issues . . . often appears to turn more on ad hoc
reactions to particular cases than on any consistent application of coherent
principles"); Redish & Nugent, "The Dormant Commerce Clause and
the Constitutional Balance of Federalism," 1987 Duke L. J. 569, 573 ("[N]ot
only is there no textual basis [for it], the dormant Commerce Clause actually
contradicts, and therefore directly undermines, the Constitution's carefully
established textual structure for allocating power between federal and state
sovereigns"); B. Gavit, The Commerce Clause of the United States
Constitution 22 (1932) (noting that the Court has set "no conscious
standard" but has rather, "in an imperial way," decided whether
each particular state action presented to it "was or was not an invalid
regulation of interstate commerce").
See also Mayor of New York v. Miln, 11 Pet.
102, 157-159 (1837) (Story, J., dissenting); Groves v. Slaughter,
15 Pet. 449, 504, 506-508 (1841) (McLean, J., concurring); Cooley v.
Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of
Distressed Pilots, 12 How. 299 (1852) (adopting a partial
exclusivity rationale for dormant Commerce Clause cases).
See also F. Frankfurter, The Commerce Clause
Under Marshall, Taney and Waite 13 (1937) ("The conception that the mere
grant of the commerce power to Congress dislodged state power finds no
expression" in the records of the Philadelphia Convention nor the
discussions preceding ratification); id., at 17-19 (noting that Chief
Justice Marshall's discussion of the "exclusiveness" doctrine in Gibbons
v. Ogden, 9 Wheat. 1, 197-209 (1824), "was logically irrelevant to
[his] holding," and adding that "[i]t was an audacious doctrine,
which, one may be sure, would hardly have been publicly avowed in support of the
adoption of the Constitution. Indeed, The Federalist in effect denied
it, by assuring that only express prohibitions in the Constitution limited the
taxing power of the states" (citing The Federalist No. 32)).
majority's assertion that James Madison viewed what we have termed the "negative"
aspect of the Commerce Clause as more significant than its positive aspects, see
ante, at 6, n. 7, is based on a letter written by Madison more than 40
years after the Convention, see 3 The Records of the Federal Convention of 1787,
p. 478 (M. Farrand ed. 1911) (hereinafter Farrand) (reprinting letter from James
Madison to J. C. Cabell, Feb. 13, 1829). The majority's interpretation of the
letter is anachronistic. There is nothing in the letter to suggest that Madison
had in mind the "negative" Commerce Clause we have created which
supposedly operates of its own force to allow courts to invalidate state
laws that effect commerce. Rather, Madison's reference to the Clause as granting
a "power" strongly suggests that he was merely asserting that the
Convention designed the Clause more to enable "the General Government,"
to negate state laws impeding commerce "rather than as a power
to be used for the positivepurposes of the General Government." Ibid.
See also ante, at 6 ("Congress
unquestionably has the power to repudiate or substantially modify th[e] course
of [our negative Commerce Clause] adjudication"); Southern Pacific Co.
v. Arizona ex rel. Sullivan,
761, 769 (1945) (Congress has "undoubted" power to "permit
the states to regulate the commerce in a manner which would otherwise not be
See also, Atherton v.
FDIC, 519 U. S. ___, ___ (1997) (slip op., at 4) (rejecting the "judicial
`creation' of a special federal rule of decision" and noting that "
`[w]hether latent federal power should be exercised to displace state law is
primarily a decision for Congress,' not the federal courts") (citation
omitted); O'Melveny & Myers v. FDIC,
79, 83 (1994) (rejecting, as "so plainly wrong," the contention
that federal common law governs application of state causes of action brought by
the FDIC as receiver for a federally insured savings and loan); Milwaukee,
451 U. S., at 314 and 313, n. 7 ("Federal common law is a `necessary'
expedi ent" resorted to only when the Court is "compelled to consider
federal questions `which cannot be answered from federal statutesalone' ")
also Gazette of the State of Georgia, Oct. 11, 1787, p. 3, col. 3 ("Just
imported . . . Superfine Philadelphia flour"); Newport [R. I.] Mercury,
June 12, 1784, p. 4, col. 2 ("Just imported . . . Burlington [New Jersey]
and Carolina, Pork, in Barrels"); ibid. ("Just imported. . .
best Philadelphia Flour"); The South Carolina Weekly Gazette, Sept. 13,
1783, p. 3, col. 2 ("Just imported, In the Sloop Rosana, . . .from Rhode
Island, . . . Potatoes, Apples, Onions by the bunch and bushel, Beats, Carrots,
and good warranted Cheese"); Columbian Herald [Charleston, S. C.], Nov. 26,
1787, p. 4, col. 4 ("Just imported, From Philadelphia, . . . Dr. Martin's
Celebrated Medicine for Cancers, Ulcers, Wens, Scurvies, Tetters, Ringworms, &c.");
Newport Mercury, July 31, 1786, p. 2, col. 2 (complaining that "last year
upwards of 700,000 bushels of corn were imported into [South Carolina] from
North Carolina and Virginia"); Columbian Herald, Feb. 14, 1785, p. 2,col. 4
(complaint about legislation pending in Georgia — lateradopted —
taxing "all goods imported into the back part of that state from South
commentators have argued that the phrase, "imported or brought,"
suggests that Connecticut lawmakers intended to distinguish between foreign
goods "imported" and other States' goods "brought" into the
State. This supposed distinction between "import ed"
and "brought" is not consistent with the remainder of the statute,
however. For example, the second paragraph of the Act uses the phrase "brought
or imported into this State" when referring exclusively to items "that
are not the Growth, Produce, or Manufacture of the United States." 1784
Conn. Acts and Laws 271. And conversely, "imported" is used alone in
contexts where it plainly covers goodsproduced in other States. See, e.g.,
id., at 309 (setting duty for sugar, "whether the Produce or
Manufacture of the United States, or not, imported into this State"); cf.
1786 Md. Laws, ch. 17, §6 (setting standards for "all beef and pork
barrels brought to, or imported into, Baltimore town, from any part of this
state"). The more plausible view, therefore, is that the words "brought"
and "imported" are largely redundant and, to the extent they refer to
different activities, the distinction in the phrase is not between foreign goods
"imported" into Connecticut, on the one hand, and other States' goods "brought"
into Connecticut, on the other, but between goods of both kinds — domestic
and foreign — commercially "imported" in quantity and those "brought"
in limited quantities by individuals in their own baggage. Compare
1784 Conn. Acts and Laws, at 272 (using the phrase "imported or brought"
when referring both to a ship's cargo and to the "Baggage of Passengers"),
with id., at 273 (using only the word "imported" when
referring solely to the ship's cargo).
assuming that the word "impost" in the two Clauses applied to the same
class of "imports," there is nothing nonsensical in reading "impost"
in Art. I, §8 as applicable to interstate as well as foreigntrade. It is
frequently the case that a broad grant of power in one Clause is restricted by
another Clause. Moreover, a State could also import goods from a federal
territory, and the congressional power to lay an impost on such (non foreign)
trade would not run afoul of the Art. I, §9 prohibition.
VI, §3 merely provided that "No State shall lay any imposts or duties,
which may interfere with any stipulations in treaties, entered into by the
United States in Congress assembled." 1 Stat. 5. And Article IX provided: "The
United States, in Congress assembled, shall have the sole and exclusive right
and power of . . . entering into treaties and alliances, provided that no treaty
of commerce shall be made, whereby the legislative power of the respective
States shall be restrained from imposing such imposts and duties on foreigners,
as their own people are subjected to, or from prohibiting the exportation or
importation of any species of goods or commodities whatsoever. . . ." 1
Stat. 6. As should be evident, neither Article requires a reading of "impost"
as applicable exclusively to foreign imports. The better reading is that when
the States levied imposts in their individual capacities, they could not
interfere with treaties enacted by the States in their collective capacity. In
fact, the two provisions, read together, suggest the existence of much broader
classes of "imposts," "imports," and "exports,"
and that only the sub class of imposts interfering with foreign trade
might be prohibited. The absence of this very qualifier in the later enacted
Import Export Clause creates a negative inference that the unqualified
constitutional language covered more than did the limited prohibition in the
some New Englanders apparently believed that the Virginia duty on New England
cheese, see supra, at , was contrary to Article IV's provision that "no
imposition, duties or restriction, shall be laid by any State, on the property
of the United States, or either of them." 1 Stat. 4. See The Salem [Mass.]
Mercury, Mar. 3, 1787. The general view of the Clause, however, and certainly
the view of the several States that imposed duties on interstate trade, see supra,
at ", was that it applied only to goods actually owned by the States, not
to goods grown or manufactured within them. See The Salem [Mass.] Mercury, Mar.
3, 1787 ("[T]he proper construction of that part of the Articles of
Confederation is, that no state in the union shall lay a tax on publick property
imported therein — for, be it remembered,Congress were, at the time the
Confederation was formed, exporters of almost every necessary for carrying on
the war, & the clause alluded to was intended to prevent any individual
state from laying a duty on those necessary supplies"); see also 12 Hening,
Virginia Statutes at Large, ch. 40, §3, pp. 304-305 (Oct. 1786)
(distinguishing between articles "which are the property of the United
States, or either ofthem," and articles "which shall be proved to be
of the growth, produce or manufacture of the State from which they shall be
in response to concerns that the inspection exemption might be used merely as a
pretext for taxing neighboring States, see 2 Farrand 589, Mason's
proposal was further amended to make any such State inspection laws "subject
to the revision and controul of Congress." Id., at 607, 624. The
need for, and existence of, this further limitation on the States' authority to
tax imports and exports suggests that the Commerce Clause power itself, referred
to by Madison, would not operate to limit the States of its own accord. Seesupra,
at , n. .
also John Quincy Adams to William Cranch, Oct. 14, 1787, in 14 Doc. Hist. 222 ("How
will it be possible for each particular State to pay its debts, when the power
of laying imposts or duties, on imports or exports, shall be taken from them —
By direct taxes, it may besaid"); George Lee Turberville to James Madison,
Dec. 11, 1787, in id., at 407 ("Why shou'd the states be prevented
from raising a Revenue by Duties or Taxes — on their own Exports? Are the
states not bound down to direct Taxation for the support of their police &
government?"); A Federal Republican, A Review of the Constitution Proposed
by the Late Convention, Oct. 28, 1787, in 3 The Complete Anti Federalist 79 (H.
Storing ed. 1981) (hereinfafter Storing) ("The [Import Export Clause] is
reducing [the States] to the necessity of laying direct taxes"); Vox
Populi, Massachusetts Gazette, Oct. Nov. 1787, in 4 Storing 47 ("Must we be
confined to a dry tax on polls andestates . . . ?").
did not publish his volumes until 1911 (although the Woodruff Court did
have available to it Madison's notes, as well as the more perfunctory convention
journal); Burnetts' Letters were published between 1921 and 1936; the Journals
of the Continental Congress were published between 1904 and 1937; volume 9 of
The Papers of James Madison, in which Tench Coxe's letter was first reprinted,
was not published until 1975; and a useful, readily accessible collec tion of
the various Anti Federalist writings was not available until1981. This is not to
say that the original documents reprinted inthese volumes would not have been
available to the Woodruff Court. But our ready access to, as well as our
appreciation of, such documents has increased over time.
were I similarly to speculate, I would not find it "improbable" that
the Convention would have trusted Congress to serve as a referee between
individual states. Since many states would necessarily be harmed by a single
state's impost, the institutional checks wouldin all likelihood be sufficient to
counter any revenue "temptation" Congress might have faced,
especially given the extensive revenue authority granted directly to Congress in
Art. I, §8, cl. 1. My "speculation" is at least consistent with
the recorded Convention debates. Roger Sherman proposed the requirement that any
revenues raised by congressionally approved state imposts go into the federal
treasury not as a separate means of raising national revenues, but to insure
that the states not use a protectionist impost as a pretext for raising revenues
from other states. See 2 Farrand 441-442 (Aug. 28).
also Providence Gazette and Country Journal, Feb. 13, 1790,p. 1, col. 1
(reprinting same); Gazette of the United States, Jan. 9, 1790, p. 2, col. 1
also T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) ("Impost
. . . A tax; a toll; custom paid"); S. Johnson, A Dictionary of the English
Language (7th ed. 1785) ("Impost. A tax; a toll; a custom paid. Taxes and
imposts upon merchantsdo seldom good to the king's revenue; for that
that he wins in the hundred, he loseth in the shire. Bacon's Essays");
Barclay's Universal English Dictionary 471 (B. Woodward rev. 1782) ("Impost.
A toll; custom paid for goods or merchandise"); T. Blount, A Law Dictionary
(1670) ("Impost Tribute, Tallage, or Custom; but more particularly it is
that Tax which the King receives for such merchandises as are imported into any
Haven, from other Nations. . . . And it may be distinguished from Custom,
which is rather that profit which the King raises from Wares exported; but they
are sometimes confounded"); cf. 7 Oxford English Dictionary 733 (2d ed.
1989) ("impost . . . A tax, duty, imposition, tribute; spec. a
customs duty levied on merchandise. Now chiefly Hist").
e.g., DeWitt, Letter To the Free Citizens of the Commonwealth of Massachusetts,
American Herald, Boston, Oct. Dec. 1787, in 4 Storing 23 (noting that Congress "shall
have the exclusive power of imposts and the duties on imports and
exports, [and, implicitly, a concurrent] power of laying excises and other
duties") (emphasis added); Letters from The Federal Farmer, Oct. 10, 1787,
in 2 Storing 239 (distinguishing between "impost duties, which are laid on
imported goods [and] may usually be collected in a few seaport towns," and "internal
taxes, [such] as poll and land taxes, excises, duties on all written
instruments, etc. [which] may fix themselves on every person and species of
property in the community"); Essays of Brutus, Dec. 13, 1787 in 2 Storing
392-393 (same); see also 2 Farrand 589 (noting that Morris "did not
consider the dollar per Hhd laid on Tobo. in Virga. as a duty on exportation, as
no drawback would be allowed on Tobo.taken out of the Warehouse for internal
were I to agree with the majority that a particular property tax may be a
property tax in name only, see ante, at 9-10, and even were I to assume
that travel across state lines to consume services in another State renders
those traveling consumers "imports," it is difficult to characterize
the tax at issue here as a duty on imports. It is, rather, as the majority
recognizes, a "generally applicable state property tax." Ante,
at 1. Maine's grant of an exemption from the tax to some charitable
organizations that dispense their charity primarily to Maine residents makes the
tax something less than universal, but it does not make the tax, even in
practical effect, one that is levied exclusively, or even primarily, on imports.
See, e.g., New Energy Co. of Ind. v. Limbach,
269 (1988); Maryland v. Louisiana,
725, 756 (1981); License Cases, 5 How. 504, 576 (1847); cf. Davis
v. Michigan Dept. of Treasury,
803, 821 (1989) (Stevens, J., dissenting) (arguing, in an analogous context,
that "the fact that a State may elect to grant a preference, or an
exemption, to a small percentage of its residents does not make the tax
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