Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 24 (1994)

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Rehnquist, C. J., dissenting

cumstances, constitute "punishment" for purposes of the Double Jeopardy Clause. Ante, at 778, and n. 15, 779. The Court made a similar finding in United States v. Constantine, supra, although in the context of a different sort of challenge. At issue in that case was the validity of a special $1,000 excise tax levied against all persons dealing in the liquor business contrary to local law. Id., at 289, n. 1. In striking down the tax as an unlawful penalty rather than a tax, the Court noted that the assessment was conditioned on the imposition of a crime, and that it was "highly exorbitant." Id., at 295.

But the Constantine factors are not persuasive in the present context. As discussed above, I do not find the conditioning of the tax on criminal conduct and arrest to be fatal to this tax's validity; this characteristic simply reflects the reality of taxing an illegal enterprise. Furthermore, the rate of taxation clearly supports petitioner here. In Constantine, the special $1,000 excise tax on the sale of alcohol was 40 times as great when compared to the otherwise applicable $25 fee for retail liquor dealers such as respondent. Ibid. When compared to the Montana tax, two points are noteworthy. First, unlike the situation in Constantine, no tax or fee is otherwise collected from individuals engaged in the illicit drug business. Thus, an entire business goes without taxation. Second, the Montana tax is not as disproportionate as the additional excise tax in Constantine. The Court makes much of the fact that the bulk of the assessment— that imposed on the low-grade "shake"—was more than eight times the market value of the drug. Ante, at 780. But the Court glosses over the fact that the tax imposed on the higher quality "bud" amounted to only 80% of that product's market value.4

4 The Kurths were taxed for their possession of 130 ounces of marijuana "bud," a substance of higher quality than the marijuana "shake." The Bankruptcy Court found that the bud had a market value of approximately

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