Prohibition on Amendment—Migration, Importation, and Apportionment

. . . no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article . . .

—Robert G. Natelson

Introduction

Article V imposes two express limitations on amendments. First, it prohibits amendments that alter any state’s equal representation in the Senate without the consent of that state. (See Essay No. 152.) Second, when Article V came into effect, it prohibited amendments adopted before the year 1808 that “in any Manner affect[ed]” the constitutional scope of three congressional powers: the power to restrict immigration; the power to regulate foreign commerce (specifically, the slave trade); and the power to impose taxes.

History Before 1787

Under the Articles of Confederation, individual states decided what persons should be admitted across their borders and what articles should be traded. The Confederation Congress had no authority over immigration or foreign or interstate commerce.¹ When Congress sought to restrict immigration of “convicted malefactors,” for example, it had to ask the states to pass legislation rather than adopt its own measures.² Similarly, Congress had no taxing authority. Instead, it requisitioned set amounts from the states from time to time, and the state governments decided how the burden should be allocated.³

The Constitutional Convention

On August 6, 1787, the Committee of Detail, chaired by John Rutledge of South Carolina, reported its draft constitution.⁴ This draft granted Congress the power to “regulate commerce with foreign nations.”⁵ Trade with foreign nations was understood to include trade in slaves, because slaves were considered articles of commerce.⁶ The draft also granted Congress the power to “declare the law and punishment of . . . offences against the law of nations,”⁷ which was understood to include authority over the “Migration” of free persons.⁸ Finally, it granted Congress the power to “lay and collect taxes.”⁹

However, the Committee of Detail draft also restricted the taxation power. In particular, direct taxes were to be allocated among states according to the total in each state of free citizens plus three-fifths of slaves.¹⁰ In the final Constitution, this became the Apportionment Clause (Article I, Section 2, Clause 3), which is discussed in Essay No. 9. The Committee of Detail draft also imposed a flat ban on prohibiting or taxing immigration and the slave trade.¹¹

On August 24, the Committee of Eleven recommended that the ban on prohibiting or taxing immigration and the slave trade expire in 1800.¹² On August 25, the Convention adopted a motion from the floor by Charles Cotesworth Pinckney of South Carolina to extend that date to 1808.¹³ Another motion adopted on the same day permitted Congress to impose “a tax or duty . . . on such importation not exceeding ten dollars for each person.”¹⁴ This tax would be a capitation because it was imposed on each slave’s head. The Committee of Style changed the direct tax apportionment rule to apply only to “capitation[s].”¹⁵ On September 14, the Convention altered the language to “capitation . . . or other direct tax.”¹⁶

The final results were Clauses 1 and 4 of Article I, Section 9. Clause 1 provided: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person” (See Essay No. 67). Clause 4 provided: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken” (See Essay No. 71).

On September 10, the Convention added a provision requiring that proposed amendments must be ratified by three-fourths of the states.¹⁷ This new provision made it possible for a supermajority of states to alter the migration, importation, and direct tax restrictions in Article I, Section 9, Clauses 1 and 4. John Rutledge of South Carolina responded that he “never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.”¹⁸ The draft was changed (probably by James Madison of Virginia) to “obviate this objection” by adding new language: “provided that no amendments which may be made prior to the year 1808 shall in any manner affect the [appropriate sections].”¹⁹ In the finished Constitution, this became “no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article.”

The Ratification Debates

The ratification debates displayed some discontent on the part of both advocates and opponents of the Constitution with respect to the accommodations made to slavery and the slave trade.

Elimination of the Slave Trade

On March 2, 1807, Congress voted overwhelmingly to prohibit the slave trade as of January 1, 1808.²⁰ Congress did not regulate the immigration of free people for many years after that, and it has never exercised its power to impose a capitation on immigrants.

Open Questions

• Why did Congress never exercise its power to impose capitations or other direct taxes on slaves or immigrants?
• May a prohibited amendment be adopted by first ratifying an amendment removing the prohibition and then ratifying the prohibited amendment?

1. Articles of Confederation, art. II; 34 J. Cont. Cong. 528 (Sept. 16, 1788). ↩︎
2. 34 J. Cont. Cong. 528 (Sept. 16, 1788). ↩︎
3. Articles of Confederation, art IX, § 5. ↩︎
4. 2 Farrand’s 177–89. ↩︎
5. Id. at 181. ↩︎
6. Robert G. Natelson, The Original Understanding of the Indian Commerce Clause: An Update, 23 Fed. Soc’y Rev. 209 (2022); Robert G. Natelson, The Meaning of “Regulate Commerce” to the Constitution’s Ratifiers, 23 Fed. Soc’y Rev. 307 (2022). ↩︎
7. 2 Farrand’s 182. ↩︎
8. Robert G. Natelson, The Power to Restrict Immigration and the Original Meaning of the Constitution’s Define and Punish Clause, 11 Brit. J. Am. Leg. Stud. 209, 211 (2022). ↩︎
9. 2 Farrand’s 181. ↩︎
10. 2 Farrand’s 183. ↩︎
11. Id. ↩︎
12. Id. at 400. ↩︎
13. Id. at 415. ↩︎
14. Id. at 417. ↩︎
15. Id. at 572. ↩︎
16. Id. at 618. ↩︎
17. Id. at 559. ↩︎
18. Id. ↩︎
19. Id. ↩︎
20. 2 Stat. 426 (Mar. 2, 1807). ↩︎