626
Thomas, J., dissenting
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,13 Article IV cannot be so read. That Article expressly permitted "duties" and "impositions" to be levied on property removed from one State to another, as long
13 Article VI, § 3, merely provided that "[n]o 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 subclass 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 Articles of Confederation.
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