Federal regulation, federal powers, state's powers, Constitution, originalism, jurisprudence, Commerce Clause, original intent


In his first inaugural address, President Abraham Lincoln declared, “I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” Like virtually all Americans before the Civil War, Lincoln believed in what historians call the “national consensus” on slavery. According to this consensus, Congress’s enumerated powers were not broad enough to justify any regulation of slavery within the states. Legal scholars who support the modern reach of federal powers have thus conventionally argued that the Constitution is a living document that changes over time outside the formal amendment process. Bruce Ackerman, for example, contends that the constitutional moment of the New Deal effectively amended the Constitution by expanding the reach of implied powers.