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Subject Area: Law
Topic: The American Revolution and Constitution

§ 93.: Legislative restraint of importations—Protective tariffs.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 93.

Legislative restraint of importations—Protective tariffs.—

The reader, who has carefully followed the line of argument adopted, and the tests applied, in each case of the exercise of police power, will scarcely need any special elaboration of the grounds upon which it is held to be a violation of civil liberty for the government to do any act which is intended to and does restrain importations. Whatever may be thought of the justice of an import tax, in the abstract, the United States constitution expressly grants to the United States government the power to lay such a tax upon all importations. A tariff for revenue, therefore, comes within the legitimate exercise of police power. It is one mode of taxation. But no claim can be successfully made to an express or implied power to establish a tariff whose object is to restrain importations for the protection of competing home industries. The only provision on the subject is article 1, section 8, where it is provided that Congress shall have power “to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States.” Here is found only an authority to establish a tariff for revenue. In the days when the constitutionality of tariff laws used to be discussed, it appears to have been conceded by the abler statesmen, that there was no authority in the constitution for creating a tariff for protection, and the claim was usually made that they may establish “a tariff for revenue with incidental protection.” This is clearly an inconsistency. A tariff for revenue, when carried to its logical extreme, would involve the institution of a policy, which would encourage importations, and discourage home manufactures, for the greater the imports the larger will be the revenue. On the other hand, the principle of protection, when pushed to its extremity, would restrain importations, and, if possible, the tariff would be so constructed that there would be no imports, and hence no revenue. While a tariff for revenue so constructed as to operate as an intentional restraint upon home industries would not be just or wise, all tariffs should be constructed with the single object in view of raising revenue, and so far as there is any attempt to afford the so-called incidental protection, Congress exceeds the express power to lay imposts.

But, in accordance with the rule of constitutional construction advocated and explained in a subsequent section,1 since the States are denied the power to lay imposts or duties upon imports, “without the consent of Congress,” “except what may be absolutely necessary for executing its inspection laws,”2 we claim that Congress may, without express grant of such a power, lay imposts for the purposes of protection, if the constitution does not prohibit it. But we also claim that a tariff for protection is prohibited by the constitution, not in express terms, but by the general clause which provides that no one shall “be deprived of life, liberty or property, without due process of law.”3 It would be as constitutional for a State to prohibit one class of citizens from trading with another, as it is for the United States to prohibit, totally or partially, the dealing of citizens with foreign countries. It is a part of the civil liberty of a citizen of a constitutional State to be permitted to have business relations with whom he pleases. Even though a protective tariff does not compel the consumer to pay more for the home products than he would have to pay for the foreign articles in the absence of a protective tariff, and the home products were of the same value and intrinsic merit, protection is unconstitutional, because it interferes with the civil liberty of the citizen, when he is not threatening any evil to the public. But protective tariffs are usually needed, either because it is impossible to manufacture the home products as cheaply, or because they are of an inferior character. Hence, the consumer is made to pay more for his goods, and the tariff furthermore deprives him of his property, without due process of law. Without express constitutional authority, nothing but free trade is permissible under a constitutional government and in a free State.

[1]See post, Chapter XVI.

[2]U. S. Cons., art. I., § 10.

[3]U. S. Const. Amend., art. 5. The platform of the Democratic National Convention of 1892 contains a similar declaration as to the constitutionality of a tariff law for protection.