Can Congress ban an item from being sold within a single state?

[A18]

The question here is the meaning of "Commerce ... among the several States" (Article I, Section 8).

I say no. As Chief Justice Marshall wrote in Gibbons v. Ogden: "The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. ... The completely internal commerce of a State, then, may be considered as reserved for the State itself."

Commerce "among the States" was understood as commerce "between the states," or more specifically, commerce between persons of different states.

Hamilton, Federalist No. 23: "The principal purposes to be answered by union are these the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries."

Hamilton would continue to refer to trade "between the States" throughout the rest of his career, even as he pushed for greater national power, including a national bank.

Madison, Federalist No. 42: "The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. ... It may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former."

The silence of the Southern states during ratification also sheds some light on the public understanding. After all, no Southern state would have ratified the Constitution if the people of that state thought Congress would have power to ban the slave trade within a particular state. Even the abolitionists of the 1860s didn't claim such a power.

[Emsworth]

Congress' power to regulate commerce among the states has, undoubtedly, been abused more than any other (followed closely by the power to spend for the general welfare). The federal government has, claiming the authority granted by this clause, presumed to regulate several matters that ought to be within the sphere of the states alone. Even that proponent of a large federal government, John Marshall, would scoff at the interpretations of the modern judiciary.

In Gibbons v. Ogden, Chief Justice Marshall wrote, "Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one." Undoubtedly, the word "among" implies that multiple states must be involved in the commerce in question. Marshall also wrote, "It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."

The Supreme Court has, in more recent times (especially since the 1930s), taken a very different approach. It has held that anything that even affects the "current of commerce," including the most minor transactions between persons in the same state, may be regulated by Congress. This is a dangerous interpretation that unduly expands federal authority. The Constitution only authorizes the regulation of "commerce ... among the states," not "anything that affects commerce among the states." The courts have given the words "among the states" almost no effect at all.

Marshall's view (considered too broad by some jurists of the era) is perfectly correct: Congress may not regulate the sale of a good within a single state, even if such a sale somehow "affects" interstate commerce.

[A18]

Another thing... traditionally, the Commerce Clause power has not been understood as concurrent. Either the federal government has jurisdiction, or the states have jurisdiction.

If the federal government can prohibit an item from being sold within the individual states, then the governments of those states presumably can not.

[jimrtex]

Your question is unclear.  Provide an example of "an item being sold within a single state."

Are you asking whether Congress could ban the sale of an item in Virginia, but not North Carolina?

[A18]

No. I mean within each of the individual states.

[A18]

Congress' power to regulate commerce among the states has, undoubtedly, been abused more than any other (followed closely by the power to spend for the general welfare).

I actually think the spending power is worse.

[jimrtex]

No. I mean within each of the individual states.

What if a company produced iron ore in Minnesota and sold it in Duluth to a transportation company; and then the transportation company transported it to Pittsburgh, where it was sold to a steel mill; and similarly coal was mined in West Virginia, sold to a transportation company which brought it to Pittsburgh and resold the coal to the steel company.  The steel company used the iron ore and coal to produce steel, which it sold to another transportation company which took the steel to Detroit and sold to an auto company, which produced a car which it sold to a transportation company, which took the car to Florida and sold it to a dealer, who cold it to a rental company who drove it Augusta, Georgia where it was leased to a pizza delivery service that sometimes delivered into South Carolina.

Any interstate commerce?

[Emsworth]

No. I mean within each of the individual states.

What if a company produced iron ore in Minnesota and sold it in Duluth to a transportation company; and then the transportation company transported it to Pittsburgh, where it was sold to a steel mill; and similarly coal was mined in West Virginia, sold to a transportation company which brought it to Pittsburgh and resold the coal to the steel company.  The steel company used the iron ore and coal to produce steel, which it sold to another transportation company which took the steel to Detroit and sold to an auto company, which produced a car which it sold to a transportation company, which took the car to Florida and sold it to a dealer, who cold it to a rental company who drove it Augusta, Georgia where it was leased to a pizza delivery service that sometimes delivered into South Carolina.

Any interstate commerce?

In each of those cases, it is not the sale but the transportation that constitutes interstate commerce.

[jimrtex]

No. I mean within each of the individual states.

What if a company produced iron ore in Minnesota and sold it in Duluth to a transportation company; and then the transportation company transported it to Pittsburgh, where it was sold to a steel mill; and similarly coal was mined in West Virginia, sold to a transportation company which brought it to Pittsburgh and resold the coal to the steel company.  The steel company used the iron ore and coal to produce steel, which it sold to another transportation company which took the steel to Detroit and sold to an auto company, which produced a car which it sold to a transportation company, which took the car to Florida and sold it to a dealer, who cold it to a rental company who drove it Augusta, Georgia where it was leased to a pizza delivery service that sometimes delivered into South Carolina.

Any interstate commerce?

In each of those cases, it is not the sale but the transportation that constitutes interstate commerce.

But no money exchanges hands during the transportation.  It is interstate, but is it commerce?

[ATFFL]

But no money exchanges hands during the transportation.  It is interstate, but is it commerce?

You think truck drivers work for free? 

Money changes hand in transportation.  Especially if the manufacturer hires an outside shipping company.

[A18]

No. I mean within each of the individual states.

What if a company produced iron ore in Minnesota and sold it in Duluth to a transportation company;

Where is Duluth? If it's in Minnesota, that's not interstate commerce.

You want me to do each and every one of those? I thought I made what I personally believe to be the proper rule fairly clear: any exchange between persons of different states can be regulated.

[jimrtex]

But no money exchanges hands during the transportation.  It is interstate, but is it commerce?

You think truck drivers work for free? 

Money changes hand in transportation.  Especially if the manufacturer hires an outside shipping company.

In my example, the transportation companies purchased the goods they transported, and the resold them at the destination, rather than simply acting as a carrier.

What if a company hires an accounting or advertising firm in another state?

[jimrtex]

What if a company produced iron ore in Minnesota and sold it in Duluth to a transportation company;

Where is Duluth? If it's in Minnesota, that's not interstate commerce.

You want me to do each and every one of those? I thought I made what I personally believe to be the proper rule fairly clear: any exchange between persons of different states can be regulated.

Is the transport of iron ore between Duluth, MN and Pittsburgh, PA by its owner (the transport company) interstate commerce?  Does it matter that the company purchased the ore in Duluth with the intent to take it to Pittsburgh and resale it?

What if a resident of one state travels to another state to purchase an item, which he brings back to his state?

[A18]

My opinion is that of Justice Story. Any time goods are shipped across state lines for sale, that is interstate commerce, and subject to federal regulation.

Any action that the federal government may regulate under the Commerce Clause, however, may not be regulated by the states. Either the Congress has jurisdiction, or the state legislatures.