A Case for Recognizing Unenumerated Powers of Congress

36 Pages Posted: 2 Jul 2010

See all articles by Paul Boudreaux

Paul Boudreaux

Stetson University - College of Law

Date Written: 2006

Abstract

Many federal statutes are justified constitutionally as the regulation of interstate commerce. But it is disingenuous to characterize the Endangered Species Act, anti-discrimination law, and many criminal statues in this way. This article argues that it would be more honest, more straightforward, and better for the nation to recognize explicitly that Congress holds certain unenumerated powers. Using principles developed in the field of unenumerated individual constitutional rights, the article suggests categories for such rights, including fields in which states are discouraged from acting, fields that involve foreign affairs, and fields that implicate national symbols and future ideals. These limits would in turn offer hope for a strengthened system of federalism.

Keywords: Interstate Commerce, Endangered Species Act, Individual Constitutional Rights, Federalism

JEL Classification: K10, K19, K30, K39

Suggested Citation

Boudreaux, Paul, A Case for Recognizing Unenumerated Powers of Congress (2006). New York University Journal of Legislation and Public Policy, Vol. 9, p. 551, 2006, Stetson University College of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=1633673

Paul Boudreaux (Contact Author)

Stetson University - College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States

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