At her confirmation hearing, Supreme Court Justice Elena Kagan said that "we are all originalists." Is that true, and what would it mean for it to be true? In Is Originalism Our Law?, I argue that there is an important sense in which Justice Kagan was right.
The Supreme Court's federalism battleground has recently shifted from the Commerce Clause to two textually marginal but substantively important domains: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. For nearly a decade, these quieter, more structurally ambiguous federal powers – the “shadow powers” – have steadily increased in prominence.