The Tonnage Clause

No State shall, without the Consent of Congress, lay any Duty of Tonnage. . . .

—Joseph Bishop-Henchman

Introduction

Tonnage refers to the internal volume, or cubic capacity of a vessel, which is measured in tons. Following independence, state governments imposed taxes or duties on vessels based on their tonnage for “the privilege of arriving or departing from a port.” Under the Tonnage Clause, such state or local taxes or duties are unconstitutional.¹ Other charges, such as user fees that compensate for specific services provided to a vessel, may be permissible.²

In 1870, Michigan Chief Justice Thomas Cooley offered a concise explanation of the Tonnage Clause: “Vessels are taxable as property . . . [but] a tax on vessels at a certain sum ‘per ton’ was forbidden.”³ Further, “a tax of a certain sum upon every vessel arriving in port is to be regarded as duty of tonnage, though demanded irrespective of the vessel’s capacity.” While the U.S. Supreme Court has allowed state taxes on imports and exports notwithstanding the Import-Export Clause (see Essay No. 84), its interpretation of the Tonnage Clause remains strict.

History Before 1787

In the 1780s, states taxed neighboring states and engaged in trade wars. The Articles of Confederation prohibited states from “lay[ing] any imposts or duties” that conflicted with existing foreign treaties, but it did so only weakly.⁴ States imposed “duties of tonnage and duties on imports . . . as levies upon the privilege of access by vessels or goods to the ports.”⁵ These duties “were distinct from fees or charges . . . for services facilitating commerce, such as pilotage, towage, charges for loading and unloading cargoes, wharfage, storage, and the like.” In 1783, for example, the Port of Baltimore required different tonnage fees based on where the vessel was registered.⁶ All Maryland-registered vessels had to pay six pence per ton; British-registered vessels had to pay 60 pence per ton; and all other vessels had to pay 12 pence per ton. Moreover, all vessels that cleared customs had to pay a duty of one pence per ton. Unlike fees to compensate for a particular service rendered to a vessel, tonnage duties were charges “imposed by virtue of sovereignty” on vessels for the purposes of raising revenue or impeding commerce.⁷

The Constitutional Convention

On September 15, 1787—the last working day of the Constitutional Convention—“the delegates made a variety of corrections and changes” in the draft Constitution.⁸ The Maryland delegation, in an effort to ensure that Congress could not prevent a state from taxing vessels as long as the revenue was used for improvements that benefited all vessels, requested an amendment stating that “no State shall be restrained from laying duties of tonnage for the purpose of clearing harbours and erecting lighthouses.”⁹ George Mason of Virginia supported the motion, arguing that the Chesapeake Bay had unique needs that justified this form of taxation.¹⁰

Gouverneur Morris of Pennsylvania replied that the amendment was not necessary. He argued that the Constitution did not restrain states from laying tonnage duties and that adopting the Maryland delegation’s language would imply otherwise. James Madison of Virginia countered that federal power to regulate commerce would restrain the states from imposing tonnage duties and that the regulation of commerce “was in its nature indivisible and ought to be wholly under one authority.”¹¹

Maryland’s proposal backfired. By a vote of 6 states to 4, the delegates adopted explicit language prohibiting states from laying a duty of tonnage unless Congress consented.¹² However, Congress would have the power to impose duties of tonnage.

The Ratification Debates

In Federalist No. 44, Madison described the Tonnage Clause as one of several “restrictions on the authority of” the states and contended that such restrictions were necessary and “qualified,” as Congress could authorize state actions.¹³ At the Maryland ratifying convention, Samuel Chase, who would serve on the Supreme Court, warned that the Constitution had the “tendency” to “annihilate state governments” and that, because of the Tonnage Clause, “no state can pay its debts—or support its government but only by direct taxes on Property.”¹⁴ In South Carolina, Rawlins Lowndes observed that the Constitution’s ban on tonnage or import duties in particular would benefit the northern states.¹⁵

Early Practice

In 1789, Congress imposed federal tonnage duties on ships engaged in interstate and foreign commerce.¹⁶ The next year, Congress consented to tonnage duties sought by three states after it had declined to fund navigation improvements along the Savannah River.¹⁷ In 1808, Congress agreed to Pennsylvania’s request to impose tonnage duties at Philadelphia to fund harbor improvements, although critics attacked it as an unfair “preference” for that port.¹⁸ (See Essay No. 73.)

Within a few decades, “few states any longer asked permission to impose [tonnage duties]” because “experience had shown tonnage taxes drove ships to other ports.”¹⁹ In 1847, President James K. Polk vetoed an internal improvements bill, vainly urging states to seek congressional approval for tonnage clauses rather than direct appropriation of funds.²⁰

In the nineteenth century, the Tonnage and Commerce Clauses were viewed as sweeping guarantees of free trade within the country. According to Justice Samuel Miller, the Tonnage Clause ensured that “vessels coming from abroad, or engaged in navigation among the States, or even if plying entirely within the boundaries of and owned by citizens of a single State, shall not be taxed, as vessels, for the privilege of navigating the inland waters of the country, or coming into any of its ports.”²¹ States or harbors could collect fees for actual services provided, such as “charges for wharfage or towage, or any other local port-charges.”²² However, any vessel “tax or duty that is imposed, whatever the subject, solely according to the rule of weight” was forbidden in order “to guard against local hindrances to trade and carriage by vessels.”²³

Judicial Precedent

In Clyde Mallory Lines v. Alabama (1935), the Supreme Court described the Tonnage Clause as a supplement to the Import-Export Clause and said that the prohibition against laying duties of tonnage prevents states from taxing vessels and indirectly taxing the merchandise on that vessel.²⁴ The Court has attempted to draw a line between forbidden and permissible taxes. Some cases have allowed user fees “that operate only to compensate a government for benefits supplied.”²⁵ This analysis resembles the Dormant Commerce Clause and Import-Export Clause analyses: The Court asks whether the charge is nondiscriminatory, a fair approximation of benefits received, and not excessive.

To this day, states cannot impose taxes on vessels based only on their capacity, whatever their use may be. Polar Tankers, Inc. v. Valdez (2009) declared unconstitutional a state-authorized property tax on large ships that travelled to and from the port.²⁶ Justice Stephen Breyer’s majority opinion observed that the tax was designed to apply primarily to oil tankers, which were ships with large cargo capacity. The Alaska law was dissimilar to permissible taxes on other property and taxes on unrelated services provided to the vessels.²⁷ Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito concurred. They would simply have found that the tax was related to the size of the vessel and was unrelated to services rendered.²⁸ Roberts wrote that “it does not matter” whether the city imposes similar taxes on other property.²⁹ Justices John Paul Stevens and David H. Souter dissented. They contended that the tax was permissible because it was levied based on value and not tonnage.³⁰

Open Questions

• Should the view of Chief Justice Roberts and Justices Thomas and Alito in Polar Tankers carry a majority of the Court?
• If Alaska imposed a tonnage tax on all forms of transportation and not just vessels, would the tax in Polar Tankers be constitutional?
• How would textualists define the term “tonnage”? How would originalists define it?
• Can a state impose user fees based on tonnage to fund harbor dredging or lighthouse operations?
• What would congressional authorization of a tonnage charge look like?

1. Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265 (1935); Cannon v. New Orleans, 87 U.S. 577, 581 (1874); Inman Steamship Company v. Tinker, 94 U.S. 238, 243 (1876) (quoting Cowel’s Law Dictionary (1708)). ↩︎
2. Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 10 (2009). ↩︎
3. Thomas M. Cooley, A Treatise on the Law of Taxation 61–62 (1876) (citing State Tonnage Tax Cases, 79 U.S. 204 (1870), and others); Erik M. Jensen, Quirky Constitutional Provisions Matter: The Tonnage Clause, Polar Tankers, and State Taxation of Commerce, 18 Geo. Mason. L. Rev. 669, 672–73 (2011). ↩︎
4. Articles of Confederation, art. VI, § 3. ↩︎
5. Clyde Mallory Lines, 296 U.S. at 265 (citing Cooley v. Board of Wardens, 53 U.S. 299, 314 (1851)). ↩︎
6. Port of Baltimore, Duties upon Exports, Duties upon Tonnage, Duties upon Exports (1784). ↩︎
7. Packet Co. v. Keokuk, 95 U.S. 80, 85 (1877). ↩︎
8. Edward J. Larson & Michael P. Winship, The Constitutional Convention: A Narrative History from the Notes of James Madison 150–51 (2005). ↩︎
9. 2 Farrand’s 625. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Id. at 625–26, 633–34. ↩︎
13. Federalist No. 44 (Madison). ↩︎
14. Storing 5.3.16. ↩︎
15. Id. at 5.12. ↩︎
16. David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801, at 58 n.26 (1997). ↩︎
17. Id. at 56 n.6 & 70 n.116. ↩︎
18. David P. Currie, The Constitution in Congress: The Jeffersonians, 1801–1829. at 154 n.214 (2001). ↩︎
19. David P. Currie, The Constitution in Congress: Democrats and Whigs, 1829–1861, at 27 n.101 (2005). ↩︎
20. Id. at 25. ↩︎
21. Samuel Freeman Miller, Lectures on the Constitution of the United States 253 (1891). ↩︎
22. Cooley, 53 U.S. at 314. ↩︎
23. Inman Steamship, 94 U.S. at 243; Packet Co., 95 U.S. at 84–85. ↩︎
24. Clyde Mallory Lines, 296 U.S. at 264–65. ↩︎
25. Massachusetts v. United States, 435 U.S. 444, 462, 464 (1978). ↩︎
26. Polar Tankers, 557 U.S. at 6. ↩︎
27. Id. at 10–13. ↩︎
28. Id. at 17 (Roberts, C.J., concurring in part and concurring in the judgment); id. at 19 (Alito, J., concurring in part and concurring in the judgment). ↩︎
29. Id. at 17 (Roberts, C.J., concurring in part and concurring in the judgment). ↩︎
30. Id. at 20 (Stevens, J., dissenting). ↩︎