Our Living Constitution
Dave Schuler looks at several constitutional amendments that were considered by Congress in the wake of the War of 1812 and is astonished to find that, while they didn’t go through, each and every one of them has long since become unquestioned powers of the Federal Government.
It was obvious to these men, well within living memory of the writing of the Constitution that the Congress did not already have these powers, but in a little more than a hundred years an outlaw Supreme Court would decide that Congress had had these powers all along.
Quite right. Essentially, we moved from the view that the central government had only those powers expressly delegated by the Constitution to one where the government could do anything not specifically prohibited in the Constitution to one where only the “most fundamental” Constitutional provisions were binding.