Some Casual Unconstitutionality

David Super

     Section 20011 of the One Big Beautiful Bill Act (OBBBA) declares “there are appropriated to the Secretary of Defense for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, to remain available until September 30, 2029, $1,000,000,000 for the deployment of military personnel in support of border operations, operations and maintenance activities in support of border operations, counter-narcotics and counter-transnational criminal organization mission support, the operation of national defense areas and construction in national defense areas, and the temporary detention of migrants on Department of Defense installations…”. 

     Article I, section 8, clause 12, of the U.S. Constitution grants Congress the power “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years”.  The four-plus years that section 20011’s appropriation is available would seem to exceed that limit rather directly.  Section 20011 clearly is intended to fund the Army and does so. 

     The Government Accountability Office’s Principles of Federal Appropriations Law (3d ed 2004), which the Supreme Court has relied upon in appropriations cases, says on page 1-13:  “The 2-year limit in clause 12 has been strictly construed as applying essentially to appropriations for personnel and for operations and maintenance and not to other military appropriations such as weapon system procurement or military construction. See B-114578, Nov. 9, 1973; 40 Op. Att’y Gen. 555 (1948); 25 Op. Att’y Gen. 105 (1904). In any event, Congress has traditionally made appropriations for military personnel and operations and maintenance on a fiscal year basis".  Section 20011’s repeated references to “operations” makes clear that much of what it funds is in the personnel, operations and maintenance category and hence subject to the two-year limitation. 

     The One Big Beautiful Bill Act lacks a severability clause.  It has no global statement of purpose nor is one to be found in the concurrent resolution on the budget that it implements.  How lovely it would be if Justices Thomas and Gorsuch led the Court to declare section 20011 unconstitutional and then to remind Congress that the Constitution does not empower the Court to “blue pencil” duly enacted statutes containing unconstitutional provisions.  Congress surely would repass OBBBA without section 20011, but after the hasty and heedless process that led to that legislation, Congress should be reminded that the Constitution still matters and be made to cast those votes again.

     The question arises how this happened.  A mechanical answer is that OBBBA provides the Army with mandatory money (the same kind that funds Social Security and Medicare) and hence was within the jurisdictions of the House and Senate Armed Services Committees rather than the Defense Subcommittees of the House and Senate Appropriations Committees.  Appropriators are accustomed to working with the two-year limitation; authorizing committees are not.  That is a lousy justification:  all Members take oaths to the entire Constitution.  (I shudder to think what would happen if Members of Congress were allowed to take their oaths to the Constitution a la carte.)

     A more structural answer is that neither chamber’s procedural rules place any particular premium on adherence to the Constitution.  It takes sixty votes in the Senate to violate your 302(a) allocation but only 51 votes to violate the Constitution.  And the House Rules Committee may block any points of order it sees fit.  These facts ought to embarrass all Members of Congress with any influence over its rules (with special demerits for those that like to talk about strict adherence to the Constitution). 

     The broader answer seems to be that adherence to the Constitution no longer carries the prestige it once did and disregard of our fundamental charter is no longer particularly stigmatized in much of our political community.  Section 20011’s authors, and all that waved it through as it navigated the legislative process, should be deeply ashamed.  I very much doubt that they are or will be.  This is a fundamental problem for the sustainability of our political community.

     @DavidASuper.bsky.social @DavidASuper1

Relative Stare Decisis

Andrew Coan

The U.S. Supreme Court has recently overturned landmark precedents on abortion rights, affirmative action, and Chevron deference, while signaling its willingness to reconsider other long settled doctrines. But amid this upheaval, one principle appears to command broad consensus: Stare decisis carries heightened force in statutory cases, where Congress can override the Court's decisions through ordinary legislation, and less force in constitutional cases, where override can only be accomplished through the onerous Article V amendment process. Every current member of the Court has endorsed this doctrine of "relative stare decisis" in some form.

Despite this apparent consensus, relative stare decisis rests on surprisingly fragile foundations. The principal justifications offered by its adherents are underdeveloped or unpersuasive, and several compelling critiques have gone unanswered. Perhaps most troublingly, the Supreme Court routinely and illogically invokes this broad generalization about two heterogeneous categories of decisions as a reason to follow or depart from precedent in particular statutory or constitutional cases. This is like trying to determine the height of Muggsy Bogues (5'3") or Spud Webb (5’7”) from the fact that NBA players are taller on average than Major League Baseball players. In mathematical terms, the Court's use of relative stare decisis to decide particular cases confuses ordinal ranking with cardinal value. This analytical error probably matters more than abstract debates about the validity of relative stare decisis as a theoretical proposition. 

In a new paper, I attempt to reconstruct relative stare decisis from the ground up, strengthening the doctrine’s theoretical foundations, while suggesting significant modifications to take on board the key insights of its critics. The core of the Article consists of two distinct justifications for treating statutory and constitutional precedents differently. The error-costs rationale provides a more rigorous foundation for familiar intuitions about legislative override. The epistemic rationale explains that statutory precedents presumptively embody greater accumulated wisdom than constitutional precedents. 

Because the strength of these justifications varies significantly within statutory and constitutional domains, as well as across the statutory-constitutional divide, it is necessary to calibrate the strength of stare decisis more granularly than the Supreme Court has done thus far. To that end, the paper develops a practical toolkit for balancing stability and reliance interests against error costs, while also accounting for the epistemic value of statutory precedents that have stood the test of time. The whole paper is available here.

Originalism vs. Living Constitutionalism: A Reassessment

Stephen Griffin

I've posted "How to Make the Debate Great: A Reassessment of Originalism vs. Living Constitutionalism" to SSRN.  This essay is the third in a sequence of articles I've written about the state of the originalism debate.  I use Professor Lawrence Solum’s influential 2019 account of the “great debate” as a foil to investigate where it stands today and where it should go in the future. In using Solum’s essay as my basis for discussion, I am concerned primarily with the structure of the debate rather than providing arguments pro or con. 

Originalism’s account of living constitutionalism’s methodology is somewhat static.  One of my goals is to demonstrate that this is wrongheaded.  Whether considered as a methodology or a normative theory, “living constitutionalism” has not only had a makeover in recent years but is not best understood as the principal competitor to originalism.  I contend that the debate has two dimensions, descriptive-explanatory and normative.  Respectively, the true competitors to originalism are sophisticated theories of constitutional change and a pluralistic approach to constitutional interpretation which accepts the reality of fundamental normative shifts in historical background circumstances.

In Part I, I make four brief observations to approach this complex debate in a considered way.  The first is that in evaluating arguments on both sides we need to be alert to the relationship between academic and judicial originalism.  We should not assume that they are independent enterprises. The second is the debate between originalism and living constitutionalism will likely be unproductive unless we distinguish between theories that are offered as descriptions and explanations of American constitutional development and normative theories that prescribe and evaluate, whether interpretive or not.  The third observation is general and not linked specifically to Solum’s essay.  If there is to be a “great debate,” I suggest it is hindered by a relative lack of exemplars (illustrations of originalist methodology prized by nearly all originalists) as well as a standard set of constitutional examples (clauses which nearly all originalists interpret).  The fourth observation examines briefly the origins of the “new originalism” in order to assess whether its critics truly understand its point of view while, at the same time, questioning whether originalists have adequately assessed the challenges posed by doctrines like federalism and separation of powers that have significant nontextual components.

I then move to two extended arguments in Parts II and III.  Part II details my claims that the debate has two dimensions and that originalism’s opponents are not best understood by attaching the generic label “living constitutionalism.”  Part III extends the discussion of one element in the great debate by explaining why it is plausible to think that the Constitution has changed through “informal” means outside the Article V amendment process.  Part IV makes some brief suggestions about how the debate should proceed in the future – really, how the debate should become more of a discussion among interested parties.  The ultimate purpose of this essay is the same as Solum’s – to say something useful from a global perspective about the state of the debate between originalists and their opponents.

How the Braidwood SCOTUS "win" may still be a huge loss for preventive care

Abbe Gluck

By doubling down on the secretary’s control in order to protect the preventive care structure from possible constitutional invalidity, the Biden administration’s litigating position constructed the pedestal on  which the current HHS secretary, Robert F. Kennedy, Jr. – known for his controversial views on many aspects of health policy, including vaccines – now stands. Indeed, just prior to the Braidwood decision, Secretary Kennedy fired all 17 members of the advisory council charged with making determinations about vaccine coverage [a different part of the ACA's preventive care structure not at issue in Braidwood....

The ACA requires that task force members and their recommendations be “independent and, to the extent practicable, not subject to political pressure.” Yet Kavanaugh’s opinion interprets this language to mean only that “Task Force members must not be unduly influenced by their outside affiliations” with universities and other employers, and says nothing about their need to exercise independent, evidence-based scientific judgment in selecting the services to be covered, consistent with both the ACA’s directive and the requirement of reasoned decision-making under the Administrative Procedure Act.

Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Christina D. Ponsa-Kraus, Enumeration and My Discontent

3. Sandy Levinson, Will Richard Primus Get the Readership He Deserves (and the Country Needs)?

4. Jonathan Gienapp, The Many Meanings of Enumeration

5. William Ewald, Does Anybody Else Suffer from Enumerationism?

6. William Baude, Constitutional Anti-Enumerationism from William Winslow Crosskey to Richard Primus

7. Abbe Gluck, Not your Father’s Federalism: Primus, Enumeration, and State Power in the Modern Era

8. John Mikhail, Why Did the Framers Enumerate Congressional Powers?

9. Richard Primus, Gratitude, and a Reply in Two Parts

The New Establishment Clause Hallmarks Test: Sources and Distortions

Andrew Koppelman

Gratitude, and a Reply in Two Parts

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Richard Primus 

If I ever doubted that the production of knowledge was a collective activity, my experience as the author of The Oldest Constitutional Question would set me straight.  While writing the book, I learned so much from so many interlocutors.  It would have been impossible to write the book without the criticisms and contributions of other people—not just one or two, but dozens.  Now that the book exists, I continue to learn from the reactions of scholars like the seven who participated in this symposium: Christina Ponsa-Kraus, Sandy Levinson, Jonathan Gienapp, Bill Ewald, Will Baude, Abbe Gluck, and John Mikhail.  It’s a privilege to have one’s work taken so seriously by such a distinguished group.  I’m deeply grateful to them——and also to Jack Balkin for making the conversation possible.

The symposium essays raise a host of topics worth pursuing.  Rather than responding to everything, I’ll focus on two recurring themes.  The first is the role, in the career of enumerationism, of the transformation of American jurisprudence from a natural-law orientation in the eighteenth century to a more positivist approach by the twentieth.  The second is about the book’s intended audience and likely impact.

Regulation by Deal Comes to Higher Ed

David Pozen

Earlier this evening, Columbia University announced an agreement with the Trump administration in which Columbia makes a host of concessions in order to restore its eligibility for federal funding. The agreement is already being described as “unprecedented,” “the first of its kind.” These descriptions are true but ambiguous, because the agreement breaks new ground on any number of levels.

Broader Implications of Congress's Abandoning the Power of the Purse

David Super

     When I came to Washington, no group of legislators was more distinctive than the appropriators.  They were quite insular and strikingly bipartisan:  Fiercely conservative Republicans and extremely progressive Democrats became almost indistinguishable when they went into the Appropriations Committees' meeting rooms.  The only group whose insular identities and bipartisanship that could come close were members of the House and Senate Agriculture Committees.  

     The reason seemed fairly clear:  Members of each Committee were hard at work securing special favors for their states, districts, or donors and were disinclined to shine much light on other Members' questionable projects because they had plenty of their own.  I always assumed that this self-interested commitment to bipartisanship would survive rising polarization even after all other Members abandoned traditions and personal friendships.

    This year, the distinctive identities of the appropriators and the aggies collapsed and with it all semblance of bipartisanship.  This Spring, at the White House's behest, Republican appropriators refused even to discuss year-long spending bills with their Democratic counterparts.  Then last week, almost all appropriators voted lock-step for the President's proposal to rescind billions of dollars that they had just appropriated (relying on Democratic votes).  They have to know that the combination of bipartisan appropriations and partisan rescissions is unsustainable because Democrats will have no assurance that they will get anything for their votes.  Deals have always been the political life-blood for appropriators.  Not any more.  

    Similarly, in addition to its more prominent upper-income tax cuts, the One Big Beautiful Bill Act also slashed nutrition assistance deeper to make room for a range of subsidies for corporate agriculture.  Historically, Agriculture Committee Members of all persuasions sought to avoid the perception of cutting nutrition assistance to support farm subsidies for fear that, once that precedent was set, off-committee Members would later demand farm subsidy cuts to pay for expanding anti-hunger programs.  Some Republicans on the Agriculture Committees still have those worries, but they no longer felt they had the political room to act on them. 

    I explored the possible consequences of this collapse of institutional identities within Congress in a guest essay for Verfassungsblog that may be of interest to some.  

     @DavidASuper1 @DavidASuper.bsky.social

Invasion, Rebellion, and Executing the Laws: Why History Rejects Trump's Federalization of the National Guard

Mark Graber

Starting a project on historical understandings of invasion, rebellion, and executing the laws. Working on a brief now. Available for talks. Longer article hopefully. Still in progress. Short version. No president during the 18th or 19th century would have federalized state militia to deal with sporadic violence during a political protest.

Constitutional Interpretation as Problem Solving: How the Modalities Work

JB

Pocket Rescission=Line-Item Veto=Unconstitutional

Gerard N. Magliocca

I defer to David Super on all matters related to the budget process, but a "pocket rescission" sure sounds like a line-item veto. I'm not a fan of the Supreme Court's opinion in Clinton v. City of New York, but I don't see any appetite on the current Court to overrule or narrow that case. 

Why Did the Framers Enumerate Congressional Powers?

John Mikhail

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

The Oldest Constitutional Question is a superb book, full of penetrating insights and cogent arguments.  Richard Primus has been thinking about enumerated powers for a long time, and it shows.  The book will, I hope, go a long way toward changing the existing conversation in constitutional law, although whether it has any influence on the courts in the near term seems more questionable. The orthodoxies Primus seeks to challenge may be too deeply entrenched for its practical impact to be felt any time soon. But over a longer horizon, I suspect that not only many scholars, but also quite a few judges, will come to view it as an important milestone.  

As Thomas Kuhn famously explained, paradigms shift when anomalies pile up and researchers come to recognize that a better explanation of the relevant evidence in a given domain can be constructed in which many of those anomalies become more intelligible, or simply disappear.  Constitutional law is not physics or astronomy, but like most forms of rational inquiry, it, too, must confront a version of the underdetermination of theory by data.  In constitutional law, we thus seek theories that can explain a significant subset of the relevant evidence, while knowing that plausible alternatives are not only possible, but inevitable. Primus approaches what he aptly labels our “oldest constitutional question” in this modest spirit.  He repeatedly emphasizes that he is not seeking to “prove” that his arguments about enumerated powers are correct, merely that they are plausible and more compelling than the received wisdom. I am not an impartial judge of this matter, having made similar arguments myself (see, e.g., here, here, here, and here), as have William Ewald, Jonathan Gienapp, Farah Peterson, David Schwartz, and a growing number of fellow travelers. Nonetheless, I will note for the record that I find the case that Primus lays out here to be brilliant, incisive, and almost entirely convincing.

Because Primus and I agree on so many matters, large and small, it seems worthwhile to devote this comment to exploring a few areas of potential disagreement, or at least somewhat different perspectives, on two of the main topics of TOCQ.  The two issues I wish to consider are why the Framers enumerated congressional powers and what James Madison’s attitudes were toward that enterprise.  Conventional wisdom holds that congressional powers were enumerated in the Constitution in order to limit the authority of the federal government. Primus responds that while this may have been a tertiary function of the enumeration, the two primary functions were to empower the federal government and to empower Congress in relation to the president (286-89).  As a general matter, this seems correct, at least with respect to many core powers. Yet I wonder if a more refined thesis, which focuses on specific delegates, particular powers, and why they were included or excluded in the enumeration, might also be defensible and more illuminating in some respects. When one looks under the hood in this fashion, it seems plausible that Madison was one of the delegates who sought to add more legislative powers to the Constitution in order to limit the government to its enumerated powers.  The received wisdom about Madison may be largely correct, in other words, even if Primus is right about the Framers more generally.

In both the popular imagination and the understanding of most lawyers and judges, Madison is closely identified with what Primus calls the enumeration principle (Congress can legislate only on the basis of its enumerated powers) and the internal limits canon (the enumerated powers, collectively, amount to less than a police power). Much of this reputation derives from things that Madison did and said after the Constitution was drafted. Primus challenges this orthodoxy, too, and he does so by revealing how skeptical Madison was about these ideas in the early part of his career.  As he ably demonstrates, when considering how to design forms of limited government during that period, Madison generally preferred external limits and process limits over internal limits.

Again, I find this argument to be largely persuasive, but I want to widen the frame by drawing attention to how slavery fit into Madison’s thinking on these matters. An important subtext of Madison’s 1785 correspondence with Caleb Wallace, which Primus uses to introduce Madison’s views on internal limits (35-46), was their tacit understanding that slavery needed to be protected in the Kentucky constitution. Madison’s advice to Wallace that external limits were a better way of doing so than internal limits was precisely what Article IX of the 1792 Kentucky constitution, which Wallace helped draft, carried into execution.  Madison’s advice to Wallace was tailored to a slaveholding state like Kentucky, however, and did not necessarily generalize to the federal government, for which a prohibition on abolition was a non-starter because of the strength of antislavery sentiment at the convention and throughout the nation. These circumstances may help to explain why Madison was focused so intently on process limits in Philadelphia, and why he turned to internal limits when those procedural efforts largely failed. Protecting slavery was his ultimate goal, while his means shifted as the convention unfolded and circumstances changed.

Not your Father’s Federalism: Primus, Enumeration, and State Power in the Modern Era

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Abbe Gluck

Richard Primus’s vision is not, as they say, your father’s federalism. His meticulous historical inquiry into enumeration yields just enough ambiguity to throw into doubt whether the Constitution’s internal limits are what actually safeguard federalism, or whether it’s something else entirely—assuming of course that the concept of state autonomy still has meaning in an era of national power. Primus emphatically thinks it does, just not that the constitutional provisions that courts typically cite in service of it actually do much work.

Constitutional Anti-Enumerationism from William Winslow Crosskey to Richard Primus

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

William Baude 

The spirit of William Winslow Crosskey is smiling.

Crosskey was a constitutional law professor at the University of Chicago, a few hours drive from the University of Michigan, who published his magnum opus in 1954. It was a two-volume book called Politics and the Constitution in the History of the United States, whose central claim was that the courts and the legal profession had wrongly come to believe that the federal government was one of limited enumerated powers. According to Crosskey “the actual, historic meaning of the document – that is, the truly intended character of the Government of the United States” had become lost. It was “a matter unknown, alike, to our accepted constitutional law, and our conventional American histories.”

Crosskey wrote:

The present misconceptions are products, in the main, of the many attempts that have been made throughout our history to distort the Constitution to serve some political end. When successful, such attempts commonly come, in the course of time, to be thought of as triumphs of orthodoxy; the antecedent, true orthodoxies become discredited; and very often, forgotten. This has happened since the Constitution was drawn, again and again.

The ingredients of the enumerated powers myth, in Crosskey’s telling, were many – linguistic drift from Founding-era word meanings, a loss of Founding-era political conceptions, deceptions perpetrated by James Madison, excessive reliance on The Federalist, Chief Justice Marshall’s inadequately and overly defensive response to the aggression of Jeffersonian ideology, and more.

While Crosskey’s book originally made a big splash, his ultimate legacy has been checkered. Reviewers came to doubt his conclusions, to lambast his historical mistakes, to resist his originalist methodology, and to shrink from his overbearing and overconfident tone. At the time of this post, his life’s work is out of print from the University of Chicago Press.

Richard Primus’s new book, The Oldest Constitutional Question Enumeration and Federal Power, is in some ways the book that Crosskey should have written. Primus’s conclusion – a radical rethinking of our assumptions about the limits on the national government’s powers – is Crosskeyite at its core. But Primus’s methodology is different. It is textually and historically inflected, but it is methodologically pluralist, not dogmatically originalist as Crosskey was.

And equally importantly, Primus’s tone and intellectual style is different. Primus cautiously and modestly proposes his radical rethinking as a possibility thesis – as an attempt to show that our present assumptions that the government is one of enumerated powers is not inevitable or necessarily correct – not as a complete refutation. Crosskey, by contrast, thought that he was speaking the capital-T Truth – “a scientifically tested and proved theory of our constitutional history” – from which all dissent was ultimately malicious or mistaken.

Will Primus’s book succeed where Crosskey’s failed? Here, I am not as certain. For one problem that Crosskey faced, that Primus also faces, is that the enumerated powers thesis is deeply rooted in our official account of constitutional law. Primus raises many good questions about whether this official account has really described our actual practice. But in my view the fact that it is our official account is a very important legal fact.

Additionally, I think the enumerated powers thesis is deeply rooted for very good reasons. The first reason is originalist – it is probably the better reading of the original materials. It may be that the Constitution itself is ambiguous about whether the federal government was supposed to be one of limited, enumerated powers. It may also be that this position was disputed among constitutional interpreters at the Founding. But the enumerated powers thesis seems to me to be the more natural view; the more widespread view; and perhaps even the view that was necessary to ensure the Constitution’s ratification.

In my view, originalism itself is the official story of our law. So we should not disregard an official account of our constitutional law that is also correct on originalist grounds. But Primus, as I mentioned, is not an originalist so he does not rest on a claim that his interpretation is the best originalist interpretation. He thinks it is best on other grounds. But I am not convinced of this either.

Enumerationism has been one of our important strategies for maintaining federalism – a system of divided power between state and national governments. Primus argues that other doctrines (such as the anti-commandeering doctrine and interpretive canons) and political safeguards (outside of judicial doctrine) have done more to protect federalism and would continue to do so. But as I see it these doctrines took hold in part because of the conventional wisdom about Congress’s powers, and even the political safeguards probably rely in part on conventional constitutional assumptions. If we do abandon our official account of a government of limited, enumerated powers, there is little reason to believe these other doctrines and practices will remain stable.

Of course, some may disagree about any of these points. But this is where Primus’s book may ultimately be a victim of its own virtues. Because Primus’s claims are cumulative, careful, and pluralist, they give the reader permission to question the conventional wisdom of our enumerated powers, but they do not require the reader to abandon it. That is why the book’s author is such an excellent and justly respected scholar. But it is also why the book itself is likely to convince only those readers who were already hoping to be convinced. 

William Baude is the Harry Kalven, Jr. Professor of Law at the University of Chicago Law School, and can be reached at baude@uchicago.edu.

Does Anybody Else Suffer from Enumerationism?

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

William Ewald 

The most striking thing about the bundle of ideas Richard Primus calls “Enumerationism” is how distinctively American it is. (It will be helpful to capitalize the word to distinguish the theory from the simple enumeration of federal powers.) All constitutions apportion governmental powers, but the near-universal American understanding that Article I, §8 is meant to limit Congressional power (and related ideas, like his “internal limits canon,” which says that the enumerated powers must add up to less than the powers of a government of general jurisdiction) is not found in any other constitutional system with which I am familiar; not, at any rate, in the same way. Why is that? What lies behind this American exception? Is Enumerationism the reflection of deep constitutional principle, or is it merely the result of defective constitutional design?

Let’s start with a couple of examples. In the United Kingdom, the fundamental constitutional principle is the sovereignty of Parliament. Parliament legislates; the executive acts; and executive action is subject to “judicial review” (in the British sense) to ensure that it conforms to settled law. But Parliament itself is free of judicial control, legally able to pass whatever laws it wishes.

The principal constraints on its legislative power are customary and political. Numerous constitutional conventions, nowhere codified but well understood, bind the hands of the Government.  The Prime Minister must have the support of the Cabinet and a majority of the Commons; proposed bills must be submitted to the House of Lords for scrutiny and suggested amendment; major legislation must first have been presented to the nation in the manifesto of the victorious party; and so on. In Primus's helpful taxonomy (pp. 37-39), these restraints are procedural. But Parliament itself is legally unbound. Plainly, in such a system, the problem of “Enumerationism” cannot arise, for the simple reason that there exists no enumeration of parliamentary powers.

The Many Meanings of Enumeration

Guest Blogger

There's No I In Law

Gerard N. Magliocca

That's the theme of my new essay in Slate.

Will Richard Primus Get the Readership He Deserves (and the Country Needs)?

Guest Blogger

For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

Sandy Levinson 

In February I contributed, under the title Who Is The Audience For This Book?, to a Balkinization symposium on Zack Price’s Constitutional Symmetry: Judging in a Divided Republic. I did not mean to be snarky or to criticize what is in fact an interesting book.  My point was simple, perhaps even simplistic:  The book was in effect a plea to the members of the Supreme Court to mend their ways and to adopt a more self-consciously politically “symmetrical” approach when writing opinions, especially in cases that touched on polarizing issues.  Thus, I argued, it really didn’t matter what the general response might be to Price’s arguments, many of which were certainly compelling, if the justices themselves did not read his book and change their behavior accordingly.  Instead, it might be just another “academic” book, comparable, in its own way, to a missive thrown into the vast ocean with the hope that someone will find it and read it.