No Preference – Constitution Article 1 §9.6

On Wednesdays we study the Constitution. I thought I’d never finish Article 1, Section 8, which lists the powers of Congress. But I finally got to Section 9, which limits the powers of Congress. It started off weak, but it’s getting better. Last week I learned about the ban on export taxes. This week I’m on to Article 1 §9.6, the “no preference clause,” which requires Congress to treat the states equally.

Constitution Article 1 §9.6

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

That there is a long sentence, so Ima break it down and look at the pieces.

No Preference shall be given by any Regulation of Commerce or Revenue

It means commerce laws and taxes can’t be used to create unequal benefits.

to the Ports of one State over those of another

The clause is specifically about ports. The concern about unequal benefits is between the states.

nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

States can’t treat other states like foreign countries.

Treating States Equally

The point of this clause is to keep Congress from playing favorites among the states. However, just like parents who claim not to have a favorite child but actually do, just saying “all the states are equal” doesn’t get the job done.

I suppose this clause may keep Senators from the “You voted against my last bill so I’m slipping a tax on ports in your state into my next bill,” sort of overt discrimination. But in practice, just about every act of Congress relating to ports ends up benefiting some to the disadvantage of others, and they always hold up in court.

A string of cases (see the Annotated Constitution page 399) establish that under the Commerce Clause, Congress may establish ports of entry, erect and operate lighthouses, improve rivers and harbors, and provide structures for the convenient and economical handling of traffic at some ports and not others.

Louisiana PSC v. Texas & N.O. R.R confirmed that charges for services do not have to be equal at all ports, even if that drives traffic to lower-priced ports. And there are a couple of cases that establish states aren’t subject to the “every port is equal” rule at all, Article 1 §9.5 be damned.

As Constitutional clauses go, this one seems to be a stepchild.