The Essentials of American Constitutional Law — John Shaqi
The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
59. It is not the delegation to Congress of power to regulate commerce
that makes the exercise of a similar power by the State void; it is
the actual exercise by Congress of its power to regulate commerce that
works the prohibition. In the absence of congressional legislation
on the subject the State may legislate. Thus a State law for the
regulation of pilots and pilotage, in the absence of Federal law for
the same, is valid.[149] This means that sovereignty acting through the
State government controls—or has jurisdiction—unless sovereignty has
acted in the matter through the government of the United States. Thus,
where the subject, say a bridge, a wharf, or a stream, over which power
may be exercised, is local in its nature and operation, or constitutes
a mere aid to commerce, the authority of the State may be exerted for
its regulation and management until Congress interferes and supersedes
State action.[150]
But a license fee exacted by a State law, from a vessel engaged in
commerce is a tax for the use of navigable waters and not a charge
in the nature of compensation for any specific improvement, or use
of wharves. It is a burden on commerce and is a State regulation of
commerce in conflict with the power of Congress to regulate it and
therefore unconstitutional.[151] But the internal commerce of a State,
that is, the commerce that is wholly confined within its limits is as
much under its control as foreign or interstate commerce is under the
control of the general government.[152]
60. By the words “taxation of commerce” is understood the taxation of
the agency, means, instrument, vehicle, or article in such a way or
with such effect as to control commerce; and by “control” is understood
any degree of control. If the State can tax foreign or interstate
commerce lightly, it can tax it heavily, and if heavily, it can so
tax as to destroy commerce. So long as the article imported remains
in the original form of package, the property of the importer, in his
warehouse, it is within the jurisdiction of the United States; but as
soon as it has become incorporated and mixed with the mass of property
in the State, it is within the jurisdiction of the State and becomes
subject to its taxing power.[153]
Were the State to tax the importer as such, this would be a tax
on importation and beyond State jurisdiction. So too would be any
charges, imposed by the State, on the introduction or incorporation
of the imported article into and with the mass of property in the
State. The essential principle here is that the taxing power of the
State cannot reach and restrain the action of the national government
within its proper sphere. “It cannot interfere with any regulation of
commerce.”[154]
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