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.

[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.

[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.

[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.

[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.