The Export Clause

Abstract

As hard as it is to imagine today, the Export Clause – which provides that “[n]o Tax or duty shall be laid on Articles exported from any State” – was an essential part of the Constitution. Without the protection the Export Clause provided to exporting states, particularly in the South, the Constitutional Convention would have imploded. Times change, however, and, by midtwentieth century, the Export Clause had become invisible to all but the nerdiest of constitutional scholars. It had become, at best, a historical curiosity.
Now the Export Clause is making a comeback. Largely ignored for over seventy years, at least in important litigation, the Clause was the subject of Supreme Court decisions in 1996, United States v. International Business Machines Corp., and in 1998, United States v. United States Shoe Corp., both of which struck down levies on constitutional grounds. Those decisions made, or should have made, people take notice: the Export Clause matters.