The problem of determining the permissible extent of state taxation of interstate commerce is as old as the Constitution.' From Chief Justice Marshall's dissertation upon the subject in 1827 in Brown v. Maryland to the present, thousands of pages of words upon the subject have found their way into the Supreme Court reports. Despite this judicial outpouring, however, the Supreme Court of the United States has yet to evolve a satisfactory theory upon which to decide cases in this field. In fact, the Court in 1951 appears as sharply divided in its basic approach to the problem as at anytime in history. Two years ago no five judges were able to agree upon the test to be used in determining the constitutionality of a state privilege tax measured by the gross receipts from operating pipe lines within the state in interstate commerce. Every reason given for upholding the tax by one group of four judges was explicitly rejected by another group of four who voted against the tax. And in January 1951 the Court ordered a reargument in a case involving the application of a state franchise tax measured by net income to the local income of a motor carrier doing an interstate business--a case which started its judicial journey in 1942 and had been before the Court once before in 1944 only to have a decision on the merits postponed.
Edward L. Barrett Jr.,
State Taxation of Interstate Commerce --"Direct Burdens," "Multiple Burdens," or What Have You?,
4 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol4/iss3/5