The incapacity of the States separately to regulate their foreign commerce was fully illustrated by an experience which was well known to the Federal Convention when forming the Constitution. It was well known that the incapacity gave a primary and powerful impulse to the transfer of the power to a common authority capable of exercising it with effect.…
New York, Pennsylvania, Rhode Island, and Virginia, previous to the establishment of the present Constitution, had opportunities of taxing the consumption of their neighbours, and the exasperating effect on them formed a conspicuous chapter in the history of the period. The grievance would now be extended to the inland States, which necessarily receive their foreign supplies through the maritime States, and would be heard in a voice to which a deaf ear could not be turned.
The condition of the inland States is of itself a sufficient proof that it could not be the intention of those who framed the Constitution to substitute for a power in Congress to impose a protective tariff, a power merely to permit the States individually to do it. Although the present inland States were not then in existence, it could not escape foresight that it would soon, and from time to time, be the case. Kentucky was then known to be making ready to be an independent State, and to become a member of the Confederacy. What is now Tennessee was marked by decided circumstances for the same distinction. On the north side of the Ohio new States were in embryo under the arrangements and auspices of the Revolutionary Congress, and it was manifest, that within the Federal domain others would be added to the Federal family.
As the anticipated States would be without ports for foreign commerce, it would be a mockery to provide for them a permit to impose duties on imports or exports in favor of manufactures, and the mockery would be the greater as the obstructions and difficulties in the way of their bulky exports might the sooner require domestic substitutes for imports; and a protection for the substitutes, by commercial regulations, which could not avail if not general in their operation and enforced by a general authority.…
But those who regard the permission grantable in section ten, article one, to the States to impose duties on foreign commerce, as an intended substitute for a general power in Congress, do not reflect that the object of the permission, qualified as it is, might be less inconsistently explained by supposing it a concurrent or supplemental power, than by supposing it a substituted power.
Finally, it cannot be alleged that the encouragement of manufactures permissible to the States by duties on foreign commerce,
