Passenger Cases - Wayne Opinion

Wayne Opinion

Justice Wayne's concurrence with the judgment, although referencing several several particular provisions of the United States Constitution, seems to be derived from a holistic understanding of the general impact of all of these provisions on the subject of commerce, as well as the nature of commerce as it exists even in the absence of formal documents such as the United States Constitution or the preceding Articles of Confederation. His analysis is formed from a consideration of many provisions of Article I of the United States Constitution, including the proviso of the First Clause of Section 8 regarding the uniformity of "Duties, Imposts and Excises," the passages of the Third Clause of Section 8 authorizing Congress to "regulate Commerce with foreign Nations, and among the several States" (the Commerce Clause), the passage of the Fourth Clause of Section 8 authorizing Congress to "establish an uniform Rule of Naturalization," and the passage of the clause prohibiting any "Preference" with respect to any "Regulation of Commerce or Revenue to the Ports of one State over those of another," the provision of the First Clause of Section 10 prohibiting the States from entering into any treaty, the provisions of the Second Clause of Section 10 prohibiting the States from laying, without the consent of Congress, any "imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws," and the provisions of the Third Clause of Section 10 prohibiting the States, again without the consent of Congress, from laying any duty of tonnage, or entering into any "Agreement or Compact with another State."

To Wayne, it is necessary to examine the nature of commerce if one is to understand the meaning of the Commerce Clause, which clause authorizes Congress to "regulate Commerce with foreign Nations, and among the several States ...." Wayne noted that even without explication in a formal document such as a constitution, nations, at least in Europe, had recognized traditions of regulating their commerce in ways that varied between peace and wartime conditions. Under the European tradition "' nation is ... fully authorized to prohibit the entry or exportation of certain merchandise, to institute customs and to augment them at pleasure, to prescribe the manner in which the commerce with its dominions shall be carried on, to point out the places where it shall be carried on, or to exempt from it certain parts of its dominions, to exercise freely its sovereign power over the foreigners living in its territories, to make whatever distinctions between the nations with whom it trades it may find conducive to its interests.'" According to Wayne, the very nature of commerce, as experienced in the European tradition and brought forth into the Commerce Clause, necessarily was a matter for the regulation of the nation as a whole: "Keeping, then, in mind what commerce is, and how far a nation may legally limit her own commercial transactions with another state, we cannot be at a loss to determine, from the subject matter of the clause in the Constitution, that the meaning of the terms used in it is to exclude the states from regulating commerce in any way, except their own internal trade, and to confide its legislative regulation completely and entirely to Congress." Wayne does not recapitulate the various ways in which Congress, by treaty and statute, actually regulates that foreign commerce which concerns immigrants and other alien passengers from abroad, particularly from Britain, preferring to incorporate by reference the detailed treatment of these measures by Justice Catron.

Notwithstanding the firmness of his opinion regarding the right of Congress, to the complete exclusion of State prerogative, to regulate foreign and interstate commerce, and even his view that the exclusivity principle had been authoritatively established by prior precedent of the United States Supreme Court, Wayne criticizes a parallel discussion of Justice McLean and announces that he and the other Justices concurring in the judgment "do not think it necessary in these cases to reaffirm, ... what this Court has long since decided, that the constitutional power to regulate 'commerce with foreign nations, and among the several states and with the Indian tribes,' is exclusively vested in Congress, and that no part of it can be exercised by a state." The reasoning of Wayne is that even those who take the position that the States have the right to regulate foreign and interstate commerce in the absence of federal regulation readily admit that when the federal government actively regulates some aspect of foreign or interstate commerce, the States are prohibited under the Supremacy Clause from enacting or enforcing any law inconsistent with the federal law. Wayne deemed that the federal government had engaged in regulating foreign commerce regarding passengers arriving from Great Britain when it entered into a series of treaties with Britain. Wayne declared that the New York and Massachusetts statutes at bar "conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries 'freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories, respectively;...'"

To Wayne, taxes represent a cost which may be imposed on some item, person, activity or status which is already within or relates to that or who is already within the jurisdiction of the taxing authority. Duties and imposts are levied upon items and/or persons coming into the jurisdiction of the levying authority. Wayne also observes a distinction between commerce, which concerns an exchange or transportation of persons, goods, documents, or information, on the one hand, and police powers, concerning the regulation of the conduct of persons and the condition of persons/or items within the jurisdiction, on the other hand. Wayne recognizes States have very broad powers of taxation, but insists that some of that power of taxation was yielded with the adoption of the Constitution. The general principle adopted by Wayne in this regard is that if a power is delegated to Congress or to the national government, so much of the power of taxation which might interfere with the prerogatives of Congress and the national government are constrained in service of the federal system. Specifically, the exclusive federal control over immigration and naturalization precludes any State taxation that would interfere with federal policy in these areas.

Wayne (in harmony with all other Justices) recognize States as the primary repository of "police powers." (The federal government can exercise "police powers" only in territory that is federal - District of Columbia, territories, and federal enclaves in the States, such as military bases and federal buildings.) "Police power" encompasses the various measures taken to assure the safety and well-being of people at the local level. Thus, to Wayne the police power of a State to protect the health of its residents includes the right to exclude from its territory diseased people. A curious example of police power which all of the Justices involved in the Passenger Cases recognized was the right of slave States to exclude free citizens from Sub-Saharan Africa out of fear that they might help organize slave rebellions. However, the police power that was most critical, especially to part of the Massachusetts statute, was the right of a State to protect its economy and social fabric from an onslaught of paupers. The judgment in Norris technically did not strike down the portion of the statute concerning paupers. However, Wayne insisted that analysis of the various views of the five Justices concurring in the judgment establishes the willingness of a majority of the United States Supreme Court to strike down State taxation of immigrant paupers, or the shipping companies which bring them to shore. To Wayne the goal of rebuffing paupers was legitimate, but utilization of taxation was an unconstitutional means. Wayne counseled States to examine immigrants and expel those found to be diseased, paupers, fugitives from criminal justice, or otherwise unworthy of admission for other reasons related to the welfare of the citizens and residents of the State. Wayne even commented in dictum that if Congress ever were to exercise its power of regulating immigration to compel States to accept such persons, that the United States Supreme Court would readily strike down such a federal statute as unconstitutional.

In Wayne's view the clause of Section 9 of Article I of the United States Constitution prohibiting any "Preference" with respect to "Regulation of Commerce or Revenue to the Ports of one State over those of another" is not limited to federal action, but also precludes any action by the States which would result in such a preference. Wayne deems a tax of the nature imposed by these New York and Massachusetts statutes to create a "Preference" between ports, in violation of this constitutional clause. Impliedly, Wayne construes the No Preference Clause to even prohibit a State from creating a situation that would disadvantage the usage of its own port with the consequence of creating a preference on the part of shippers in favor of the ports of other States.

Wayne utilizes a parallel logic in construing the First Clause of Section 8 of Article I of the United States Constitution. This Clause qualifies the authority of Congress to "lay and collect Taxes, Duties, Imposts and Excises" with a command that "all Duties, Imposts and Excises shall be uniform throughout the United States." Again, although Article I concerns Congress, and Section 9 concerns an authority expressly granted to Congress, Wayne construes the proviso requiring uniformity as not only placing a limitation on the exercise of Congressional power, but as also imposing on the States the duty not to compromise the uniformity of "Duties, Imposts and Excises" collected "throughout the United States."

In addition to Wayne's discussion of the constitutional issues, he expounds at length on the alleged history and imputed status of City of New York vs. Miln. According to Wayne, the opinion authored by Justice Barbour which purports to be the official opinion of the United States Supreme Court in that case "had not at any time the concurrence of a majority of its members." He also bitterly accuses Chief Justice Taney of knowingly disregarding that supposed fact with the consequence of creating a false precedent in the official reports.