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.

Courts at both the federal and state level are busy remaking the law of eminent domain, most notably in the controversial Kelo decision. Property rights advocates argue that courts should scrutinize more closely government's ability to take property with plans to transfer it to private developers. But asking courts to second-guess the wisdom of governmental policy decisions cannot be a workable solution. Instead, eminent domain could be tightened by relying on the idea of representation reinforcement, through which courts boost the interests of those groups who are unlikely to have their voices heard in the political realm. Across the nation, local governments are using eminent domain to discourage residency by poor persons. This article proposes that eminent domain be constitutionally impermissible when it is both used to take land destined for private hands and disproportionately hurts the poor or politically disadvantaged.

This essay identifies "three levels of ownership" of land – private ownership, local ownership, and global ownership. American law has placed great emphasis on a supposed clash between the first two, as local governments attempt to regulate against the wishes of private owners. But recent political and economic research highlights the extent to which homeowners use local law to benefit their interests at the expense of outsiders, including potential migrants. A greater emphasis on global ownership, perhaps paired with private ownership, would lessen the adverse impact of this local protectionism.

For decades, American law has debated, inconclusively, whether the great legal pronouncements against race discrimination permit “affirmative action.” As a means of ending much of this debate, this article argues that it may be a good time for Congress to answer this question directly. For decades, it was assumed that affirmative action would never be accepted explicitly by legislatures; it would have to be adopted through less democratic means. But attitudes have changed, and the time might be ripe for straighter talk and a democratic solution to the affirmative action debate.

The odd system for choosing the American president – the electoral college – has been defended on shifting grounds over the years. Only one of these grounds – federalism – currently remains. This article examines the historical record and concludes that federalism was not a significant reason for adoption of the system. Today, the electoral college provides at best a very meager form of federalism. Conversely, it encourages candidates to ignore states during each election and holds the potential for great mischief, including the election of a truly “regional” president.

The prohibition against “take” of endangered species would appear, at first blush, to be the most powerful protection of the federal Endangered Species Act. But the provision has not met its potential, the article argues, in part because its parameters remain fuzzy. This article examines the parameters of intent, directness, timing, proximate causation, and standard of proof. This examination reveals a prohibition that holds its greatest potential as a means of enjoining an impending harm to a species.