Cite as: 520 U. S. 564 (1997)
Thomas, J., dissenting
ing the meaning of the words in the Clause, see supra, at 621-624.18
In short, there is little in the Woodruff opinion to sustain its holding, and its weakness is even more evident given the contrary precedent rejected by the Woodruff Court. In Brown v. Maryland, 12 Wheat. 419, 449 (1827), Chief Justice Marshall, writing for the Court, suggested: "[W]e suppose the principles laid down in this case [namely, that a state license tax on importers of foreign articles was invalid both under the Import-Export Clause and the Act of Congress which authorizes importation] to apply equally to importations from a sister State." And just eight years before Woodruff, Chief Justice Taney, writing for a unanimous Court, struck down a stamp tax on bills of lading for gold being shipped from California to New York, holding that "the State tax in question is a duty upon the export of gold and silver, and consequently repugnant to the [Import-Export] clause in the Constitution." Almy v. California, 24 How. 169, 175 (1861) (emphasis added).
Chief Justice Marshall's statement in Brown was merely dicta, of course, but the Woodruff majority's rejection of the precedential force of Almy, based solely on its assertion that "[i]t seems to have escaped the attention of counsel on both sides, and of the Chief Justice who delivered the opinion,
18 Indeed, were I similarly to speculate, I would not find it "improbable" that the Convention would have trusted Congress to serve as a referee between individual States. Since many States would necessarily be harmed by a single State's impost, the institutional checks would in all likelihood be sufficient to counter any revenue "temptation" Congress might have faced, especially given the extensive revenue authority granted directly to Congress in Art. I, § 8, cl. 1. My "speculation" is at least consistent with the recorded Convention debates. Roger Sherman proposed the requirement that any revenues raised by congressionally approved state imposts go into the federal treasury not as a separate means of raising national revenues, but to ensure that the States not use a protectionist impost as a pretext for raising revenues from other States. See 2 Farrand 441-442 (Aug. 28).
635
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