This chapter surveys current doctrine concerning the scope of Congress’s regulatory, taxing, and spending powers. The Court’s historic pattern of decisions both presents a study in constitutional change and illumines factors that sometimes make change difficult. Prior to the Great Depression and the New Deal, the Court struggled uncertainly to cabin Congress’s powers under Article I. But the Court, seemingly in response to political pressures, substantially abandoned that effort in 1937, when it began to interpret the Commerce Clause as giving Congress vast powers to regulate the national economy and the Taxing and Spending Clause as allowing it to create largesse-dispensing programs that the Founding generation could not have imagined. At least since the 1980s, a strain of conservative scholarship has maintained that the modern, swollen national government finds no justification in the original Constitution and that the Court should enforce the original design. This chapter traces the Court’s limited success in implementing a course correction and identifies the considerations that have given pause to conservative justices. It also describes the Court’s more aggressive efforts to limit congressional power under the Thirteenth, Fourteenth, and Fifteenth Amendments, all of which include express authorizations of Congress to “enforce” their substantive guarantees.

Argued October 6, 1999.Decided February 23, 2000.

ROLNICK, J., delivered the opinion of the Court.1

Petitioner Harold Rice seeks the right to vote in an election for trustees of the state Office of Hawaiian Affairs (“OHA”). Hawai’i law provides that only “Hawaiians,” a term defined in the statute as anyone who descends from an ancestor who was present in the Hawaiian Islands in 1778,2 may vote in this election. Petitioner Rice, who was born and raised and still resides in Hawai’i, descends from ranchers and missionaries who migrated to the islands in the mid-1800s. Rice v. Cayetano, 963 F. Supp. 1547, 1548 (D. Haw. 1997).

Most histories of Reconstruction begin their narrative in December 1863 when President Abraham Lincoln announced his Ten Percent Plan, reserving most of the authority to restore the collapsing Confederacy in the executive branch. Frederick Douglass also thought that Reconstruction began in 1863, but in January rather than in December. That month, after the final Emancipation Proclamation was issued, the War Department at long last permitted states to recruit black soldiers, which Douglass believed was the first step toward black citizenship and voting rights. Although Republicans envisioned Reconstruction as a policy only for the Confederacy, Douglass understood that the entire nation required political reclamation. If William Lloyd Garrison and a good number of white abolitionists assumed their struggle concluded with the ratification of the Thirteenth Amendment in December 1865, Douglass understood that the fight had just begun. He knew that the antithesis of slavery was not freedom, but equality.