ArtI.S10.C2.2 Historical Background on Import-Export Clause

Article I, Section 10, Clause 2:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

Prior to the Constitution’s adoption, the colonies, and later states, imposed tariffs on goods from foreign countries and from other colonies, often in response to adverse economic conditions that the governments believed were due to trade imbalances, and to protect or promote domestic industries. For example, in 1788, New Hampshire adopted the first law expressly imposing import duties to improve its economic conditions in response to what it considered an unreasonable trade imbalance that favored foreign countries, primarily Great Britain. This rationale subsequently informed the adoption or amendment of other colonial tariff legislation.1 Similarly, Massachusetts imposed two types of import duties ( “double duties” ) on vessels from foreign powers and other colonies, as well as additional duties on all commodities from the colonies directly surrounding it.2 These measures were described as offering “the best protection” for the colonial shipping industry in the early to mid-1700s, resulting in Massachusetts having “the most shipping,” and by 1789, “nearly all the shipping in the trade of Massachusetts was American.” 3

In response to the states’ fragmented approach to controlling interstate and foreign commerce, the Continental Congress asked the states in 1786 to grant the Congress authority to control or prohibit trade with foreign powers for fifteen years. Although some states agreed to the request, others did not or did so with conditions on such power, which ultimately led to no federal action and a continuance of separate state actions and regulations.4

The question of state power to impose import and export duties inspired significant debate during the Constitutional Convention. The delegates considered and proposed multiple drafts that reflected different views about whether states should ever be permitted to impose import and export duties, as well as what conditions should apply to any such duties that states could legally impose. This debate ultimately led to a relatively detailed constitutional provision that reflected these concerns.

An early draft of the Import-Export Clause applied only to duties on imports and was included within a larger list of actions that states generally could not undertake unless Congress authorized them to do so.5 On August 28, 1787, however, the delegates voted 6-5 to add export duties to the general prohibition.6 James Madison proposed moving the provision from the list of actions that states could not take without congressional consent to a different part of the Constitution that listed absolute prohibitions, thereby prohibiting states from imposing import and export duties in all circumstances. Colonel George Mason argued against such a blanket prohibition, asserting that states may wish to impose duties to assist the industries in which they had competitive advantages. Madison countered that allowing states to protect their industries through duties on foreign countries and other states would only continue the problems associated with lacking a unified, national power to regulate commerce.7 The Convention rejected Madison’s proposal by a vote of 4-7.8

In September 1787, the delegates continued debating amendments to the provision. On September 12, the Convention agreed to reconsider the version of the Import-Export Clause debated in August to add a qualifying phrase. This phrase stated that the Clause should not be interpreted to prevent the states from adopting export duties to cover the costs of inspection, packaging, and storage fees, as well as indemnifying the losses incurred while the goods were held by public officers.9 Colonel Mason formally proposed the amendment on September 13 as follows:

Provided that no State shall be restrained from imposing the usual duties on produce exported from such State, for the sole purpose of defraying the charges of inspecting, packing, storing, and indemnifying the losses on such produce, while in the custody of public officers: but all such regulations shall in case of abuse, be subject to the revision and controul of Congress.10

The delegates adopted this amendment by a vote of 7-3, agreeing to compare and reconcile that version with the proposed provision from the Committee on Style.11 The Committee’s version of the provision separated the issue of import and export duties from all other limits on state power, stating as follows: “No state shall, without the consent of Congress, lay imposts or duties on imports or exports, nor with such consent, but to the use of the treasury of the United States.” 12

On September 15, 1787, the delegates sought to reconcile these drafts. They chose to adopt the Committee of Style’s decision to make the prohibition on import and export duties a standalone provision, rather than include the prohibition within a longer list of limits on state power. This allowed the delegates to incorporate the amendments adopted on September 13 into the version reflected in the Constitution.13 Indicative of how divisive the provision remained, however, a final motion was made to strike the Clause subjecting all state laws imposing import and export duties “to the Revision and Controul of the Congress.” This motion failed, and the final text was adopted with ten delegates in favor, and Virginia the only vote in opposition.14

William W. Bates, American Navigation 35–36 (1902). back
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2 The Records of the Federal Convention of 1787, at 187 (Max Farrand ed., 1911). back
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