The Tonnage and Compact Clause – Constitution Article 1 §10.3

I kinda broke my rhythm for Constitutional study, but what can you do? Things slip in the summertime. But this week I’m back and ready to tackle Article 1, Section 10. The last Clause I looked at was Article 1 §10.2, which dealt with import and export duties. This is a momentous occasion, because Article 1 §10.3, aka the tonnage clause and also the compact clause is the end of Article 1. It took 13 months to finish Article 1 of seven in the Constitution!

Article 1 §10.3

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Well that’s quite a grab bag of restrictions on states’ power. Duty on tonnage and engaging in war all in the same sentence. What gives?

Tonnage Tax

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

Some quick internet research reveals that this phrase was intended to close a loophole in §10.2, which forbade states from taxing each other’s imports and exports. With §10.3, the Framers preemptively blocked states from trying to get around that restriction by taxing the ships that carried interstate imports. Although it refers to a “tonnage” duty, the Courts sided with the intent of the law as early as 1874 and as recently as 2009 by determining that it applies to any tax that effectively discriminates against ships by point of origin. Clyde Mallory Lines v. Alabama in 1935 seems to have been the most important of the cases that dealt with this question. The most recent case, Polar Tankers, Inc. v. City of Valdez, Alaska, also established that the tax is not designed to privilege vessels over other property. That sounds fair. Yay, justice!

Keep Troops

No State shall, without the Consent of Congress, … keep Troops or Ships of War in time of Peace,

This seems weird and out of place, so I’ll just share what the annotated Constitution says:

This provision contemplates the use of the state’s military power to put down an armed insurrection too strong to be controlled by civil authority, and the organization and maintenance of an active state militia is not a keeping of troops in time of peace within the prohibition of this clause.

Um. Okay. There are two relevant court cases, if you’re interested: Luther v. Borden and Presser v. Illinois. But I’m not.

Interstate Compacts

No State shall, without the Consent of Congress, … enter into any Agreement or Compact with another State, or with a foreign Power

I feel like this has been covered in the Constitution before. How is an agreement or compact different from a compact?

Compact: The term compact is most often applied to agreements among states or between nations on matters in which they have a common concern.

The Constitution contains the Compact Clause, which prohibits one state from entering into a compact with another state without the consent of Congress.

Sounds like a treaty to me. I don’t know, but in 1837 in Poole v. Fleeger the Supreme Court unanimously asserted the fundamental right of states and nations to establish their borders – which seems like the opposite of this clause? Maybe I’m rusty from taking a couple weeks off, but this clause doesn’t make much sense to me. Okay, more research is needed. Annotated Constitution to the rescue:

Chief Justice Taney in Holmes v. Jennison: “[A]s these words [‘agreement’ and ‘compact’] could not have been idly or superfluously used by the framers of the constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive.

But fifty some years later, in Virginia v. Tennessee the Court held that the unqualified prohibition of compacts and agreements between states without the consent of Congress did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the political powers of the contracting states or to encroach upon the just supremacy of the United States.

With all the gerrymandering going these days and reports of overrepresentation of small states in Congress, I’m not sure I agree. But what’s done is done.

Engage in War

No State shall, without the Consent of Congress… engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Again, this is something I thought we already covered. But at least it makes sense. And there doesn’t seem to be a history of case law relating to the obviously bad idea of individual states making war. I think by this point, the Framers were ready to call it a day and grab a pint. And so am I.