Slavery and the History of Congress's Enumerated Powers

40 Pages Posted: 31 Aug 2021

See all articles by Jeffrey M. Schmitt

Jeffrey M. Schmitt

University of Dayton - School of Law

Date Written: February 22, 2021


Legal scholarship often ignores or minimizes slavery’s profound influence on the history of federal powers. In fact, a number of influential scholars contend that constitutional history supports an understanding of Congress’s enumerated powers that would leave no subject reserved to the states. This scholarship, however, is inconsistent with the history of the Founding, early Congress, and Marshall and Taney Courts. Before the Civil War, virtually all American elites agreed that Congress had no power to interfere with slavery in the states. Because slavery was fundamental to the national economy, this meant that the federal government had no power to regulate social or economic activity within the states, regardless of its connection to interstate commerce. The modern regulatory state is thus incompatible with how federal powers were understood before the Civil War, and legal scholars should stop pretending otherwise. Especially at this time of racial reckoning, legal scholarship should acknowledge slavery’s pervasive influence on constitutional history. Doing so will both undermine the moral legitimacy of originalism and emphasize the need for a living Constitution.

Keywords: slavery, enumeration, originalism,

Suggested Citation

Schmitt, Jeffrey M., Slavery and the History of Congress's Enumerated Powers (February 22, 2021). Arkansas Law Review, Forthcoming, Available at SSRN:

Jeffrey M. Schmitt (Contact Author)

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States

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