Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 76 (1997)

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Cite as: 520 U. S. 564 (1997)

Thomas, J., dissenting

Committee on Detail, replied as follows: "[D]uties are applicable to many objects to which the word imposts does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c." 2 Far-rand 305 (emphasis in original); see also 2 Storing 54 (Luther Martin, in Maryland Convention, describing same colloquy); The Fallacies of the Freeman Detected by a Farmer, Freeman's Journal, April 1788, in 3 Storing 186-187 ("Under the term duties [in Art. I, § 8], every species of indirect taxes is included, but it especially means the power of levying money upon printed books, and written instruments"). What seems likely from these descriptions is that a duty, though broader than an impost, was still a tax on particular goods or written instruments.

It is important to note, moreover, that the Martin-Wilson colloquy is in reference to the Art. I, § 8, power given to Congress to levy duties. That power is broader than the prohibition on States found in Art. I, § 10, which reaches not all duties, but only those on "imports or exports." 21 But

even without this additional limitation, one kind of tax that duties almost certainly did not encompass were "direct" taxes, such as property taxes and poll taxes. See, e. g., The Federalist No. 12 (A. Hamilton) (distinguishing direct taxes,

21 See, e. g., DeWitt, Letter To the Free Citizens of the Commonwealth of Massachusetts, American Herald, Boston, Oct.-Dec. 1787, in 4 Storing 23 (noting that Congress "shall have the exclusive power of imposts and the duties on imports and exports, [and, implicitly, a concurrent] power of laying excises and other duties" (emphasis added)); Letters from The Federal Farmer, Oct. 10, 1787, in 2 Storing 239 (distinguishing between "im-post duties, which are laid on imported goods [and] may usually be collected in a few seaport towns," and "internal taxes, [such] as poll and land taxes, excises, duties on all written instruments, etc. [which] may fix themselves on every person and species of property in the community"); Essays of Brutus, Dec. 13, 1787 in 2 Storing 392-393 (same); see also 2 Farrand 589 (noting that Morris "did not consider the dollar per Hhd laid on Tobo. in Virga. as a duty on exportation, as no drawback would be allowed on Tobo. taken out of the Warehouse for internal consumption").

639

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