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Article 1, Section 10, Clause 2

Document 11

Joseph Story, Commentaries on the Constitution: 2:§§ 1013--15, 1029--30, 1049


§ 1013. . . . In the first draft of the constitution, the clause stood, "no state, without the consent," &c. "shall lay imposts or duties on imports." The clause was then amended by adding, "or exports," not however without opposition, six states voting in the affirmative, and five in the negative; and again by adding, "nor with such consent, but for the use of the treasury of the United States," by a vote of nine states against two. In the revised draft, the clause was reported as thus amended. The clause was then altered to its present shape by a vote of ten states against one; and the clause, which respects the duty on tonnage, was then added by a vote of six states against four, one being divided. So, that it seems, that a struggle for state powers was constantly maintained with zeal and pertinacity throughout the whole discussion. If there is wisdom and sound policy in restraining the United States from exercising the power of taxation unequally in the states, there is, at least, equal wisdom and policy in restraining the states themselves from the exercise of the same power injuriously to the interests of each other. A petty warfare of regulation is thus prevented, which would rouse resentments, and create dissensions, to the ruin of the harmony and amity of the states. The power to enforce their respective laws is still retained, subject to the revision and control of congress; so, that sufficient provision is made for the convenient arrangement of their domestic and internal trade, whenever it is not injurious to the general interests.

§ 1014. Inspection laws are not, strictly speaking, regulations of commerce, though they may have a remote and considerable influence on commerce. The object of inspection laws is to improve the quality of articles produced by the labour of a country; to fit them for exportation, or for domestic use. These laws act upon the subject, before it becomes an article of commerce, foreign or domestic, and prepare it for the purpose. They form a portion of that immense mass of legislation, which embrace every thing in the territory of a state not surrendered to the general government. Inspection laws, quarantine laws, and health laws, as well as laws for regulating the internal commerce of a state, and others, which respect roads, fences, &c. are component parts of state legislation, resulting from the residuary powers of state sovereignty. No direct power over these is given to congress, and consequently they remain subject to state legislation, though they may be controlled by congress, when they interfere with their acknowledged powers. Under the confederation, there was a provision, that "no state shall lay any imposts or duties, which may interfere with any stipulations of treaties entered into by the United States," &c. &c. This prohibition was notoriously (as has been already stated) disregarded by the states; and in the exercise by the states of their general authority to lay imposts and duties, it is equally notorious, that the most mischievous restraints, preferences, and inequalities existed; so, that very serious irritations and feuds were constantly generated, which threatened the peace of the Union, and indeed must have inevitably led to a dissolution of it. The power to lay duties and imposts on imports and exports, and to lay a tonnage duty, are doubtless properly considered a part of the taxing power; but they may also be applied, as a regulation of commerce.

§ 1015. Until a recent period, no difficulty occurred in regard to the prohibitions of this clause. Congress, with a just liberality, gave full effect to the inspection laws of the states, and required them to be observed by the revenue officers of the United States. In the year 1821, the state of Maryland passed an act requiring, that all importers of foreign articles or commodities, &c. by bale or package, or of wine, rum, &c. &c., and other persons selling the same by wholesale, bale, or package, hogshead, barrel, or tierce, should, before they were authorized to sell, take out a license, for which they were to pay fifty dollars, under certain penalties. Upon this act a question arose, whether it was, or not a violation of the constitution of the United States, and especially of the prohibitory clause now under consideration. Upon solemn argument, the Supreme Court decided, that it was.

. . . . .

§ 1029. As the power of taxation exists in the states concurrently with the United States, subject only to the restrictions imposed by the constitution, several questions have from time to time arisen in regard to the nature and extent of the state power of taxation.

§ 1030. In the year 1818, the state of Maryland passed an act, laying a tax on all banks, and branches thereof, not chartered by the legislature of that state; and a question was made, whether the state had a right under the act, to lay a tax on the Branch Bank of the United States in that state. This gave rise to a most animated discussion in the Supreme Court of the United States; where it was finally decided, that the tax was, as to the Bank of the United States, unconstitutional.

. . . . .

§ 1049. It is observable, that these decisions turn upon the point, that no state can have authority to tax an instrument of the United States, or thereby to diminish the means of the United States, used in the exercise of powers confided to it. But there is no prohibition upon any state to tax any bank or other corporation created by its own authority, unless it has restrained itself, by the charter of incorporation, from the power of taxation. This subject, however will more properly fall under notice in some future discussions. It may be added, that congress may, without doubt, tax state banks; for it is clearly within the taxing power confided to the general government. When congress tax the chartered institutions of the states, they tax their own constituents; and such taxes must be uniform. But when a state taxes an institution created by congress, it taxes an instrument of a superior and independent sovereignty, not represented in the state legislature.

The Founders' Constitution
Volume 3, Article 1, Section 10, Clause 2, Document 11
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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