BROWN v. MARYLAND 12 Wheat. 419 (1827)

The Court, over the sole dissent of Justice smith thompson, held unconstitutional a state act imposing an annual license tax of $50 on all importers of foreign merchandise. Since the state charged only $8 for a retailer's license, the Court could have found that the license tax on wholesalers of imported goods discriminated against foreign commerce, but Chief Justice john marshall, for the Court, expressly declined to give an opinion on the discrimination issue. Marshall rested his opinion partly on a finding that the license tax constituted a state impost or customs duty on imports, contrary to the import-export clause of Article I, section 16, clause 2, of the Constitution. The sale of an import, Marshall reasoned, is inseparably related to bringing it into the country under congressional tariff acts and paying the duty on it.

Marshall had still greater interests to protect. He turned this simple case of a prohibited state impost, or of a state discrimination against foreign commerce, into an opportunity to lay down a rule explaining when federal authority over foreign commerce ceased and the state power to tax its internal commerce began: as long as the importer retained the property in his possession in the "original package" in which he imported it, federal authority remained exclusive; but when the importer broke the package and mixed the merchandise with other property, it became subject to state taxation. Marshall therefore found that the state act was a violation of the commerce clause interpreted as vesting an exclusive national power, as well as a violation of the import-export clause, and Marshall added, "we suppose the principles laid down in this case, to apply equally to importations from a sister State."

In the time of Chief Justice roger b. taney (who represented the state in Brown), the Court rejected that supposition and still later ruled that the original package doctrine applies only to foreign commerce. Although many imports, like crude oil and natural gas, no longer come in "packages," making the doctrine inapplicable, a state tax on foreign commerce still in transit remains an unconstitutional impost. But little remains today of the original package doctrine. In michelin tire corp. v. wages (1976) the Court abandoned the doctrine in cases involving nondiscriminatory ad valorem property taxes, ruling that such taxes, even on goods imported from abroad and remaining in their original packages, do not fall within the constitutional prohibition against state taxation of imports.

Leonard W. Levy
(1986)