The Uniformity Clause

. . . all Duties, Imposts and Excises shall be uniform throughout the United States. . . .

—Nelson Lund

Introduction

The Confederation government lacked the power to regulate interstate and foreign commerce and had weak powers of taxation.¹ The Constitution cured these defects but thereby created a new danger: The national government might abuse its powerful regulatory and taxing powers in ways that would undermine the kind of beneficial economic competition the Framers hoped to promote. The Uniformity Clause was designed to reduce this risk by ensuring that federal duties, imposts, and excise taxes would be uniform in every state.

The Constitutional Convention

At the Constitutional Convention, the Uniformity Clause was joined initially with what is now the Port Preference Clause (Article I, Section 9, Clause 6), which bars Congress from giving preferences “by any Regulation of Commerce or revenue” to the ports of one state over those of another.² (See Essay No. 73.) The Port Preference Clause limits both the commerce and taxing powers, whereas the Uniformity Clause applies to the taxing power alone. Their common origin, however, is a sign of their common purpose: Each was meant to prohibit geographic discrimination that would give some states or regions a competitive advantage in their commercial relations with the others.³

The U.S. Supreme Court seems to have assumed that the uniformity requirement applies to all levies that are not “direct taxes” within the meaning of the Direct Taxes Clause (Article I, Section 9, Clause 4).⁴ (See Essay No. 71.) Because the scope of that clause is notoriously indeterminate, this definition is imprecise.⁵ Generally speaking, however, the Uniformity Clause’s three overlapping categories of “indirect taxes” included levies on consumption, trade, and legislatively specified business and official transactions (such as fees on auction sales and license fees).⁶

Because the goods and activities that can be taxed are distributed unequally through the country, virtually all duties, imposts, and excises have nonuniform effects. Accordingly, the Constitutional Convention’s committee on trade changed “uniform and equal” to “uniform,” presumably to avoid an implication that these taxes must have identical effects in all states.⁷ A tax on tobacco, for example, would obviously have affected certain regions more severely than others. Because the Constitution expressly empowers Congress to levy these taxes, it necessarily permits some of the nonuniform effects that inevitably accompany them. The principal challenge in interpreting the Uniformity Clause is to distinguish the kind of nonuniformity that is forbidden by the Constitution from the nonuniform effects that necessarily accompany permissible duties, imposts, and excises.⁸

Judicial Precedent

The Supreme Court’s first significant exposition of the Uniformity Clause came in 1884. The Head Money Cases (1884) declared that a tax is uniform if it “operates with the same force and effect in every place where the subject of it is found.”⁹ This rule was meant to forbid geographically nonuniform taxes without outlawing all geographically nonuniform effects. But the Court’s formula does not describe any limits on the legislature’s discretion to define the “subjects” of taxation. Without such limits, Congress could simply define the subject of an excise tax as “tobacco grown in Maryland” or “tobacco grown anywhere except in Maryland.”

United States v. Ptasynski (1983) unanimously upheld an excise tax on the production of crude oil, with an exception for oil produced in most areas north of the Arctic Circle. The Court observed that a concern with regional discrimination motivated the adoption of the Uniformity Clause, relying primarily on the detailed analysis in Knowlton v. Moore (1900) and a passage in Justice Joseph Story’s Commentaries. Ptasynski presented an issue that the Court had not yet squarely addressed: “whether the Uniformity Clause prohibits Congress from defining the class of objects to be taxed in geographic terms.”¹⁰ The Court concluded (1) that any tax in which the subject is defined in nongeographic terms satisfies the Uniformity Clause and (2) that where the subject is defined in geographic terms, the tax will be scrutinized for “actual geographic discrimination.”¹¹

The first part of this test creates a very large safe harbor for discriminatory taxes, which can often be framed without using overtly geographic terminology, such as “oil whose production might disturb a population of caribou.” Nor does the second part of the test put a meaningful limit on Congress’s power to favor some states or regions over others. The Court nowhere defined “actual geographic discrimination,” and it went out of its way to emphasize that review of statutes using such geographic terminology would be highly deferential.¹² The absence of any definition of “actual geographic discrimination,” especially when combined with the promise of deferential review, has rendered the Uniformity Clause without effect, except to the extent that it might encourage congressional self-restraint.

Open Questions

• Might the Court borrow from the jurisprudence of the Privileges and Immunities Clause and the Court’s “dormant commerce” cases to create a legal test that reflects the Uniformity Clause’s goal of protecting free markets and economic competition from the influence of special interests in Congress?¹³
• Might the Court adopt a legal test under which a tax is unconstitutional if and only if it provides benefits to a majority of states at the expense of a minority of states?¹⁴
• Might the Uniformity Clause be interpreted to help justify a uniformity constraint on federal spending?¹⁵

1. Federalist No. 22 (Hamilton); Federalist No. 30 (Hamilton); Federalist No. 42 (Madison). ↩︎
2. 2 Farrand’s 417–18. ↩︎
3. Knowlton v. Moore, 178 U.S. 41, 95–101 (1900); 1 Story’s Commentaries § 957. ↩︎
4. Knowlton, 178 U.S. at 83; Nicol v. Ames, 173 U.S. 509, 515 (1889); Federalist No. 12 (Hamilton); Federalist No. 21 (Hamilton); and Federalist No. 36 (Hamilton). ↩︎
5. Nelson Lund, The Uniformity Clause, 51 U. Chi. L. Rev. 1193, 1194–95 n.5 (1984). ↩︎
6. Robert G. Natelson, What the Constitution Means by “Duties, Imposts, and Excises”—and “Taxes” (Direct or Indirect), 66 Case W. Res. L. Rev. 297, 318–29 (2015). ↩︎
7. Knowlton, 178 U.S. at 104; 2 Farrand’s 437. ↩︎
8. Lund, supra at 1195; Philip Joseph Deutch, The Uniformity Clause and Puerto Rican Statehood, 43 Stan. L. Rev. 685 (1991). ↩︎
9. Edye v. Robertson, 112 U.S. 580, 594 (1884). ↩︎
10. United States v. Ptasynski, 462 U.S. 74, 83 (1983). ↩︎
11. Id. at 82, 84–85. ↩︎
12. Id. at 86. ↩︎
13. Lund, supra at 1195. ↩︎
14. Deutch, supra at 689. ↩︎
15. Laurence Claus, “Uniform Throughout the United States”: Limits on Taxing as Limits on Spending, 18 Const. Comment. 517 (2001). ↩︎