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Today, a political movement has arisen to oppose what seems to be a highly discretionary and legally unconstrained federal government. Beginning in the Bush Administration during the Panic of 2008 and accelerating during the Obama Administration, the federal government has bailed out or taken over banks, car companies, and student loans. It is now preparing to vastly expand the Internal Revenue Service to help it take charge of the practice of medicine for the first time in American history. This marked and rapid increase of power has shaken many Americans who are now looking to the United States Constitution with renewed interest in the limits it imposes on the powers of Congress. Despite what the Constitution says, however, federal judges have allowed Congress to exceed its enumerated powers for so long, it seems they no longer entertain even the possibility of enforcing the text.

Judges appointed by both Republican and Democratic presidents largely operate within what academics call the "New Deal settlement." By this it is meant that the courts allow Congress to exercise unchecked power over the national economy and everything that may affect it, limited only by the express guarantees of the Bill of Rights. In this arena, with some exceptions, the post-New Deal judiciary disagrees only on whether other unenumerated rights may also receive protection and, if so, which ones. But whatever few additional "fundamental" rights may be recognized, they do not include the protection of any so-called "economic liberty" that might inhibit the national regime of economic regulation.

In this manner, the original scheme of islands of federal powers in a sea of liberty has been transformed into a regime of islands of rights in a vast sea of national power. But judicial passivism is not the only cause of expanding congressional power. Also responsible are two changes to the Constitution's structure that were made in 1913 as "populist" or "progressive" reforms but which fundamentally altered the relationship between the federal government, the states, and the people as it appears in the Constitution's text.

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78 Tenn. L. Rev. 813-822 (2011)