Article I, Section 8, Clause 3:
[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .
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 exclude
the exclusively internal commerce of a state. Although, 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 external 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. 1
Recognition of an
exclusively internal commerce of a state, or
intrastate commerce in today's terms, was regarded as setting out an area of state concern that Congress was precluded from reaching. 2 Although these cases seemingly visualized Congress’s power arising only when there was an actual crossing of state boundaries, this view ignored Marshall's equation of intrastate commerce that affects other states or with which it is necessary to interfere in order to effectuate congressional power with those actions which 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’s regulatory power, 3 with the emphasis on the interrelationships of industrial production to interstate commerce 4 but especially with the emphasis that even minor transactions have an effect on interstate commerce 5 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. 6
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. 7