Cite as: 517 U. S. 843 (1996)
Kennedy, J., dissenting
constitutionality of § 4371, and Fairbank is not to the contrary.
Turning once more to Thames & Mersey, I note the 1797 statute was neither briefed to the Court there nor discussed in its opinion. The Court, furthermore, did not examine the text or history of the Export Clause, relying instead on the broad theory of the Clause espoused in the companion case, United States v. Hvoslef, 237 U. S. 1 (1915): namely, that it meant the "process of exporting . . . should not be obstructed or hindered by any burden of taxation," id., at 13 (internal quotation marks and citation omitted). See Thames & Mersey, 237 U. S., at 25. (Hvoslef's holding that a nondiscriminatory tax on charter parties was unconstitutional as applied to export shipments, by the way, is also called into question by the 1797 Act, which imposed a similar tax.)
Besides failing to consider the evidence just cited, the Thames & Mersey Court relied in part on the theory that insurance is not commerce and so, by implication, the regulatory aspect of the tax could not be justified as an exercise of Congress' Commerce Clause power. See Thames & Mersey, supra, at 25, citing Paul v. Virginia, 8 Wall. 168 (1869). As a result, the Court reasoned, an insurance policy was simply a personal contract and a document which, by custom, was a necessary part of every export transaction. 237 U. S., at 25- 26. A tax on the premiums of such a policy, which fell upon the exporting process and increased its costs, was thought to be the equivalent to a tax laid on charter parties, bills of lading, or the goods themselves. Id., at 27. We abandoned long ago the notion that insurance is not commerce and so beyond the power of Congress to regulate. See United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 543-545 (1944). Congress enacted § 4371 to regulate competition within the insurance field, and its authority to do so ought not to be impaired by a strained reading of the Export
877
Page: Index Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: October 4, 2007