Cite as: 520 U. S. 564 (1997)
Thomas, J., dissenting
nal many of the historical materials cited above, which indicate that the words used in the Import-Export Clause encompassed, at the time the Constitution was written, both interstate and foreign trade.17 Indeed, the Woodruff majority itself felt compelled to note that its "research [had] extended" only so far as permitted by "the discussions on this subject, as they have come down to us from that time." Id., at 136; see also id., at 134 (referring to the "imperfectly . . . preserved" discussions of the Continental Congress). Whatever the cause, the Woodruff Court's analysis of the historical usage of the words overlooked many contrary examples and is thus not especially compelling.
The second contention that the Woodruff Court used to bolster its textual argument was a policy concern based on an unnecessarily broad view of the Import-Export Clause's prohibition. The Woodruff Court believed that the prohibition on "Duties or Imposts on Exports or Imports" exempted imported articles, and the merchants who traded in them, from state taxation of any kind, at least so long as they remained in their original packages. Id., at 137. This view of the Clause's prohibition would result in "the grossest injustice," said the Court, were the Clause to be read as applying to "articles brought from one State into another," for "[n]either the State nor the city which protects [the import merchant's] life and property [could] make him contribute a dollar to support its government." Ibid.
17 Farrand did not publish his volumes until 1911 (although the Woodruff Court did have available to it Madison's notes, as well as the more perfunctory convention journal); Burnett's Letters were published between 1921 and 1936; the Journals of the Continental Congress were published between 1904 and 1937; volume 9 of The Papers of James Madison, in which Tench Coxe's letter was first reprinted, was not published until 1975; and a useful, readily accessible collection of the various Anti-Federalist writings was not available until 1981. This is not to say that the original documents reprinted in these volumes would not have been available to the Woodruff Court. But our ready access to, as well as our appreciation of, such documents has increased over time.
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