CRS Annotated Constitution
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Among the Several States.—Continuing in Gibbons v. Ogden, Chief Justice Marshall observed that the phrase “among the several States” was “not one which would probably have been selected to indicate the completely interior traffic of a state.” It must therefore have been selected to demark “the exclusively internal commerce of a state.” While, of course, the phrase “may very properly be restricted to that commerce which concerns more states than one,” it is obvious that “[c]ommerce among the states, cannot stop at the exterior boundary line of each state, but may be introduced into the interior.” The Chief Justice then succinctly stated the rule, which, though restricted in some periods, continues to govern the interpretation of the clause. “The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.”600
Recognition of an “exclusively internal” commerce of a State, or “intrastate commerce” in today’s terms, was at times regarded as setting out an area of state concern that Congress was precluded from reaching.601 While these cases seemingly visualized Congress’ power arising only when there was an actual crossing of state[p.164]boundaries, this view ignored the Marshall’s equation of “intrastate commerce,” which “affect[s] other states” or “with which it is necessary to interfere” in order to effectuate congressional power, with those actions that are “purely” interstate. This equation came back into its own, both with the Court’s stress on the “current of commerce” bringing each element in the current within Congress’ regulatory power,602 with the emphasis on the interrelationships of industrial production to interstate commerce603 but especially with the emphasis that even minor transactions have an effect on interstate commerce604 and that the cumulative effect of many minor transactions with no separate effect on interstate commerce, when they are viewed as a class, may be sufficient to merit congressional regulation.605 “Commerce among the states must, of necessity, be commerce with[in] the states. . . . The power of congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states.”606
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