Enumerated Powers and Race

Andrew Coan

(coauthored with David S. Schwartz)

Until the mid-twentieth century, the doctrine of limited, enumerated powers—or “enumerationism”—exerted its greatest influence on the regulation of race relations. Before the Civil War, a broad constitutional consensus held that the maintenance of slavery was a question for the states that fell outside the enumerated powers of Congress.  Indeed, many scholars now believe that the maintenance of slavery was the driving force behind the theory of enumerationism. Notwithstanding the effort to nationalize the rights of African Americans through the Reconstruction Amendments, the Supreme Court and Congress quickly fled the arena, yielding control of race relations to the states. This was manifested most clearly in legislative and judicial toleration of Jim Crow laws and the Supreme Court’s refusal to permit Congress to enact general equality legislation during Reconstruction. 

Enumerationism can therefore claim a longstanding historical pedigree for federal disempowerment over race relations through the 1940s. But this fact hardly recommends itself as the basis for a binding historical settlement in enumerationism’s favor.  To the contrary, it supplies a precedent for the rejection of enumerationist historical practice in the realm of constitutional construction. Significantly, the Supreme Court’s eventual rejection of the enumerationist understanding of race relations was only partially based on the Reconstruction Amendments. The landmark Civil Rights Act of 1964, which arguably did more to further racial equality than the Equal Protection Clause, was enacted under the Commerce Clause of the original 1787 Constitution.  

This reinterpretation of the Commerce Clause is crucial to the constitutional construction of enumerationism in two ways. First, it demonstrates how the Commerce Clause has come to function as a de facto General Welfare Clause. Second, it supplies a powerful precedent for the proposition that settled historical practices under the Constitution are not permanently fixed but can be unsettled and resettled.  It is difficult to accept the “civil rights settlement” of the mid-twentieth century as a valid and authoritative historical practice for purposes of constitutional construction while rejecting as historically insufficient the even more longstanding New Deal settlement, including broad federal regulatory power over virtually every sphere of social and economic life.

For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.”