—Charles Edward Andrew Lincoln IV, Ph.D. candidate in international tax law at the University of Groningen, with research interests including constitutional structure, tax federalism, and cross-border work
In the 2015 decision Comptroller of the Treasury of Maryland v. Wynne, Justice Clarence Thomas accused the United States Supreme Court’s majority of announcing a rule that “would have come as a surprise to those who penned and ratified the Constitution.”[1] Maryland taxed its residents on all their income but denied a full credit for income taxes paid to other states. The majority held that the resulting risk of double taxation unconstitutionally discriminated against interstate commerce. Justice Thomas invoked history to rebut this reasoning. He explained that several states imposed income taxes around the founding of the United States, and that their statutes did not appear to grant credits for taxes paid elsewhere.
The disagreement looked peculiarly American, a dispute about the dormant Commerce Clause in the US Constitution, under which courts infer limits on state measures from Congress’s power to regulate interstate commerce. Yet the founding-era case for federal commercial power was itself comparative. Alexander Hamilton and James Madison asked Americans to learn from two European composite polities: the Holy Roman Empire and the Dutch Republic. This essay argues that Hamilton’s and Madison’s European comparisons show that the founding generation understood fragmented authority over cross-border commerce, and the cumulative or discriminatory taxation it could produce, as a constitutional problem requiring federal supervision. Their examples do not prove the modern dormant Commerce Clause. They do, however, complicate any originalist account that treats cross-border economic life, and the possibility of taxing it more heavily, as problems alien to the constitutional generation.
Publius’s comparative case for federal power
Hamilton’s argument in The Federalist No. 22 began at home. If commercial regulation remained divided among the states, New York could exploit its position to make Connecticut and New Jersey “tributary” to it. Retaliation would produce “interfering and unneighborly regulations.” He then looked to the Holy Roman Empire, where commerce was trapped in “continual trammels” by the many duties that princes and states charged on merchandise passing through their territories.[2] Germany’s navigable rivers were natural commercial arteries, but serial tolls allowed each territorial authority to burden the same journey.
Madison made the comparison more explicit in The Federalist No. 42. States dependent on routes through their neighbors needed protection from “improper contributions” imposed in passage. The burden of such charges would ultimately reach producers and consumers outside the taxing state. “The necessity of a superintending authority over the reciprocal trade of confederated States,” Madison wrote, had been demonstrated abroad as well as in America.[3]
His first example was again Germany. Imperial law required common approval before a prince or state established tolls on bridges, rivers, or passages, yet the rule had been evaded in practice. His second example was the Netherlands, whose 16th century constitutive agreement restrained members from imposing duties harmful to their allies without general consent.
Madison’s Dutch reference points to Article XVIII of the Union of Utrecht of 1579. That article prohibited a province, city, or other member from introducing imposts that burdened or prejudiced the other confederates without general consent. It then stated a striking nondiscrimination rule. No member could “impose higher taxes upon any of these allies than upon their own residents.”[4]
That language operated within a genuinely composite order. The Union of Utrecht preserved the privileges, laws, customs, exemptions, and rights of its provinces, cities, members, and inhabitants. Provincial and municipal boundaries therefore carried fiscal and legal consequences; they were not merely internal administrative lines. Article XVIII responded to the danger that one member would use those boundaries to shift costs onto people or commerce connected to another.
The analogy should not be overstated. The Dutch provinces that made up the confederate Union of Utrecht were not American states, and a treaty-based restriction among the confederate entities was not a judicially enforceable implication of the Commerce Clause. Article XVIII also regulated imposts rather than a modern tax on net income. But it was not a comparison invented by a present-day scholar. Madison placed it before the ratifying public to explain the constitutional need for authority over commerce among separate jurisdictions.
The movement behind the constitutional problem
The administrative record reveals the economic activity behind Publius’s examples. Dutch Rhine River and Waal River toll registers survive across a series stretching from the seventeenth into the nineteenth century. At Schenkenschans, near the division of those two rivers, officials recorded such details as the date, direction, skipper and residence, type of vessel, cargo, origin or destination, and toll due.[5] A single journey along the Rhine-Waal route could reportedly encounter twenty toll stations between Andernach and Dordrecht, even before reaching tolls farther upstream.
German constitutional materials corroborate Madison’s description. Joseph II’s electoral capitulation of 1764 prohibited new, increased, or relocated tolls without imperial approval and consultation. It addressed charges collected at gates, bridges, roads, markets, and warehouses, and condemned unauthorized exactions that injured neighboring territories, their subjects, and their merchants.[6] The repeated effort to control such charges shows both the constitutional concern and the gap between formal rule and territorial practice.
To be sure, goods did not cross these boundaries by themselves. Skippers, boatmen, carriers, merchants, and agents moved with them. Other sources show labor mobility more directly. The Imperial Craft Ordinance of 1731 regulated journeymen who traveled to seek work. A journeyman received certified credentials, presented them to the guild in the next town, deposited them while employed, and recovered them when he moved on.[7] The ordinance also sought recognition of occupational qualifications across differing local rules.
None of this establishes the existence of the modern commuter. A toll entry may prove only one passage; a seasonal worker might remain away for months; and a regulation may reveal an official aspiration rather than uniform enforcement. The narrower conclusion is enough. Work and commerce crossed legally significant boundaries often enough to produce toll books, travel papers, recognition rules, and confederal constraints. Mobility was neither exceptional nor invisible to government.
What this history changes—and what it does not
The Wynne majority used the internal consistency test. This test asks what would happen if every state adopted the challenged tax. If every state copied Maryland’s system, interstate income could bear two state-level burdens while equivalent intrastate income bore one. Maryland’s scheme therefore created an incentive to keep income-producing activity inside the state.[8]
The European evidence cannot establish that this test formed part of the Commerce Clause’s original public meaning. Eighteenth-century transit duties and modern income taxes rest on different tax bases. Residence is a recognized basis for taxing worldwide income, while the place where income is earned may also tax at source. Nor do German or Dutch materials answer Justice Scalia’s more fundamental objection that the dormant Commerce Clause lacks a textual foundation.
But history also should not begin from an artificially isolated picture of economic life. Hamilton and Madison described a world of neighboring jurisdictions, shared routes, cumulative exactions, retaliation, and discriminatory imposts. The ratification debate itself connected American commercial federalism to comparative constitutional experience. The relevant question is therefore not whether Dutch or German law governed the United States. It is what problem Publius used those systems to identify.
That difference also clarifies the evidentiary role of comparison in originalist argument. A free-standing survey of foreign practice ordinarily says little about what the American public understood constitutional language to mean. Madison supplied the missing historical link. He selected German and Dutch arrangements and presented them to American readers as illustrations of a common confederal problem. They are evidence about the object of the constitutional design, even if they do not dictate the judicial remedy.
Across all three settings, decentralized governments could impose an added burden because economic activity crossed a boundary. Hamilton’s merchants encountered serial territorial duties. Madison’s producers and consumers bore charges imposed by a state of passage. Article XVIII guarded confederates against prejudicial imposts and higher taxation than residents faced. The Wynnes confronted two jurisdictions asserting tax claims connected to the same income. These were different taxes in different constitutional orders, but they shared a structural risk.
This distinction matters beyond Wynne. Originalism and comparative constitutional law are sometimes treated as opposing methods. One looks inward and backward, the other outward and across systems. Here the historical actors themselves made the comparison. Foreign arrangements matter not as external authority, but as evidence of the problem the Constitution’s advocates told the public they were solving.
That evidence supports a modest conclusion. The Dutch and German materials do not supply an eighteenth-century pedigree for every feature of modern dormant Commerce Clause doctrine. They do show why fragmented power over cross-border economic life concerned the founding generation. Madison’s European warning was that formally separate jurisdictions, left to tax shared commerce without effective coordination, could turn political boundaries into cumulative economic burdens. Wynne’s internal consistency test is modern. The danger it addresses is not.
Suggested citation: Charles Edward Andrew Lincoln IV, What James Madison Larned from Europe’s Federal Failures: The European Backstory to the Commerce Clause, Int’l J. Const. L. Blog, Aug. 13, 2026, at: http://www.iconnectblog.com/what-james-madison-learned-from-europes-federal-failures-the-european-backstory-to-the-commerce-clause/
[1] Comptroller of the Treasury of Maryland v. Wynne, 575 U.S. 542, 579 (2015) (Thomas, J., dissenting).
[2] The Federalist No. 22, at 143–45 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
[3] The Federalist No. 42, at 267–69 (James Madison) (Clinton Rossiter ed., 1961).
[4] Union of Utrecht art. XVIII (Jan. 23, 1579), translated in Texts Concerning the Revolt of the Netherlands 165, 171 (E.H. Kossmann & A.F. Mellink eds., 1974).
[5] Leendert van Prooije, “Toll Stations Along the Great Rivers”, Viabundus Blog (Oct. 25, 2020); Utrechts Archief, Schenkenschans toll registers, 1630–31.
[6] Wahlkapitulation Josephs II art. VIII (Frankfurt am Main, Mar. 27, 1764), in Wolfgang Burgdorf ed., Die Wahlkapitulationen der römisch-deutschen Könige und Kaiser 1519–1792 549, 575–83 (2015).
[7] Imperial Craft Ordinance (Reichshandwerksordnung), pt. II–III (Aug. 16, 1731) (Insa Kummer trans.).