Enforcing Article Four, Section Two

Gerard N. Magliocca

By one reckoning, there are a group of fugitives in Illinois who are wanted alive and able to answer a quorum call in Texas. Article Four, Section Two says a state must extradite any person charged with a crime to the state making the charge if that state's executive authority demands extradition. Assume that some formal indictment or information must be made before this provision is triggered. Let's also assume that the Clause is operative if the fugitives flee in anticipation of a criminal charge rather than only after being charged. (The latter is the more natural reading of the text, but maybe that will be litigated.)

Can the federal courts enforce Article Four, Section Two? Is there any precedent for issuing an injunction against a state governor to return a fugitive to another state? I have no idea.

Patterns in Slashing Food Assistance

David Super

      The One Big Beautiful Bill Act (OBBBA) that Congress passed this summer represents the third massive cutting spree in the history of the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps).  The first came in three laws enacted under President Reagan in 1981-82, by far the largest of which was the Omnibus Budget Reconciliation Act of 1981 (OBRA 1981).  The second was another pair of laws enacted in 1995-96, dominated by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA or “the 1996 welfare law”).  This post seeks insight into attitudes about anti-poverty programs by comparing the three.  It concludes that no meaningful theme unites these three episodes beyond the desire to fund tax cuts delivering most of their benefits to the affluent.  In other words, no enduring disagreements separate liberals and conservatives on anti-poverty policy except that many Republicans regard assuring adequate nutrition for low-income people is not an essential governmental function.    

     OBRA 1981 was passed by a Republican Senate and a House coalition of Republicans and  conservative Democrats, signed by a Republican President.  PRWORA was passed by a Republican Congress but signed by a Democratic President and, at his urging, gained a great many congressional Democrats' votes.  OBBBA was passed on essentially party-lines votes, with one Republican in each chamber dissenting over objections to the cuts to anti-poverty programs.  

     In 1981, a group of anti-poverty Senate Republicans led by Senator Bob Dole fought back against the proposed cuts that they believed would do the most damage to the program and the low-income people who depend on it.  (Those dismissing Senator Dole’s food stamp advocacy as merely serving Kansas farmers badly underestimate the man.  Among other things, he spent enormous amounts of political capital, risking his later ascension to be Senate Majority Leader, fighting Senator Jesse Helms to replace cuts hitting the poorest of the poor with ones affecting households somewhat better-able to bear the loss.  Those shifts did not change anything from farmers’ point of view.)  Pro-food stamp Democrats also led the House delegation in the conference committee, although they were badly undermined by having repeatedly lost floor votes to the coalition President Reagan had assembled.

     In 1995-96, Republicans on the House and Senate Agriculture Committees started out amenable to some food stamp cuts, but demands from Speaker Newt Gingrich’s leadership far surpassed the level they supported.  They lost intra-party battles on the depth of the cuts, but Reps. Pat Roberts and Bill Emerson, along with Sen. Richard Lugar, remained open throughout the process to ideas for how to reduce the hardship the cuts would inflict on low-income households.  Leaders of both the House and Senate Agriculture Committees fought and won intra-party battles to prevent the program from being block-granted.

     This year, House and Senate Agriculture Committee Republicans decided early among themselves about how they wanted to slash SNAP and largely tuned out dissenting voices, including those from within their Party.  Even on questions of drafting clarity, they largely froze out external voices.  Ultimately Senate Republican Leader John Thune needed to exempt Alaska from some of the harshest provisions in the bill to win Senator Lisa Murkowski’s vote; the Committee did as it was told but did not take the occasion to reconsider any of its policies for the remainder of the country.   

     Each of these three episodes resulted in estimated reductions of about one-fifth in projected spending.  The composition of those cuts, however, was very different. 

     President Reagan’s theme was stripping benefits from the working poor.  He insisted that he was maintaining a “safety net for the truly needy”, but in food stamps and other programs he sought to reduce or eliminate benefits for low-income working families.  This played beautifully into Speaker Gingrich’s hands a decade later as he complained that very few families receiving welfare or food stamps were working.  Gingrich cited that as justification for slashing the programs further. 

     As students in my Public Welfare Law course could tell you, targeting benefits on those most in need and providing incentives for efforts to reduce need are opposite policies that must be balanced when designing any anti-poverty program.  President Reagan was a targeter; Speaker Gingrich was all about incentives while refusing to acknowledge, of course, that he was repudiating President Reagan’s legacy.  Some prominent Democrats, including Senator Daniel Patrick Moynihan, have focused on targeting; others, such as Professor David Ellwood, have focused laser-like on incentives. 

     OBBBA has no consistent philosophical valence in either direction between targeting and incentives.  Its authors complained about people were getting benefits who did not need them – evidently a reference to the low-wage workers states had begun to serve through some flexibility PRWORA granted.  But they also complained that more SNAP recipients should be working.  (Research shows that the overwhelming majority of SNAP recipients who can work do, although they often turn to SNAP for help during gaps in employment, which are common because low-skilled workers typically can obtain only unstable jobs.) 

     Thus, on the one hand, its rules terminating aid to those who had than three months with less than half-time employment during any three-year period will hurt some of the most needy:  those with the least skills.  On the other hand, its provisions shifting benefit costs to states are explicitly intended to discourage those states from adopting options that broaden the program’s reach among low-wage workers. 

     Just as the three episodes of food assistance cutting show no consistency in their philosophies about the best use of program funds, they also diverge on federalism.  States did not feature prominently in debates about President Reagan’s food assistance cuts.  Many states, including those with Republican governors, expressed concern about losing federal aid for their low-income people. 

     The Gingrich Revolution, by contrast, placed states on a pedestal.  It offered them greater control over programs’ funds in exchange for less total money.  States eagerly grabbed this deal to liquidate the Aid to Families with Dependent Children program.  Many balked about taking Medicaid or food stamps, seeing few politically palatable opportunities to cut, but Gingrich leveraged the threat of block-granting to force through massive food stamp cuts within the existing program structure.   

     OBBBA takes the opposite approach, lambasting states for sabotaging and maladministering the program.  This Republican pivot to condemning states counterbalances a pivot by SNAP advocates following the 1996 welfare law.  After decades of seeking to buttress uniform national standards in SNAP, the lesson they learned from 1995-96 was that improvements in SNAP are more politically sustainable with the states’ support.  Republicans apparently have reached similar conclusions and are hoping that forcing states to pay a share of SNAP benefit costs will discourage states from supporting liberalizations and could cause some states to drop out of the program altogether.  This does follow the 1995-96 model of imposing financial inducements for states to shoulder the blame for benefit cuts rather than legislating them directly.  But a serious version of federalism it is not. 

     The only major through-line in the means of extracting savings from SNAP is increasing dependence on bureaucratic disentitlement.  OBRA 1981 required working households to fill out and submit elaborate reports of their earnings every month during a narrow window of days.  When households made mistakes, or state agencies became backlogged, the households were automatically cut off.  This system caused so much chaos that a cross-section of states as well as advocates clamored for its elimination; President Reagan signed legislation making it a state option late in his Administration. 

     OBRA 1981 also imposed draconian fiscal penalties on states for overissuing benefits to households.  Because improper denials did not factor into these error rates, a “when in doubt, deny” attitude grew among many human services offices.  Overwhelming complaints from over forty states caused the Reagan Administration to negotiate a drastic reduction in these penalties (followed by further administrative reductions in the George H.W. Bush Administration and legislative reductions approved by George W. Bush). 

     PRWORA pioneered a new kind of “work requirement”.  Previously, public welfare programs’ work requirements directed beneficiaries to “workfare” or other assignments; if the beneficiaries did as instructed, they kept their benefits.  Most states disliked these programs as being administratively burdensome to operate and serving little purpose as employable food stamp recipients already had strong motivations to find jobs to pay their rent and other non-food bills.  Congressional Republicans were dissatisfied with the numbers of food stamp recipients working so they kept the disqualification rule but eliminated the requirement that recipients be given the chance to work for continued benefits. 

     States’ distaste for running work programs overwhelmed whatever moral responsibility they felt for food stamp recipients who were willing to work but unable to find half-time jobs.  Many others who actually were working half-time or more failed to navigate states’ bureaucratic requirements for proving those hours.  Hundreds of thousands of desperately poor childless individuals between the ages of 18 and 49 were denied aid.  Even when they became eligible again, many failed to realize that or simply understood that they were no longer welcome in SNAP.

     Food bankers and other emergency food providers regarded this as a disaster, but OBBBA’s drafters apparently found this story inspiring.  They expanded this workless “work requirement” to childless individuals up to age 65 and to families with children age 14 and up.  Coupling this with ferocious penalties on states for serving someone whom federal auditors find not to have documented sufficient hours, the bureaucratic barriers to documenting work are likely to multiply. 

     Anti-poverty programs can only be stable with substantial bipartisan support.  Making significant program design sacrifices to secure that support is worthwhile even when one party dominates the levers of power.  Unfortunately, the absence of coherent conservative policy preferences concerning food assistance that emerges from these three episodes makes a viable path to bipartisan compromise difficult to discern. 

     @DavidASuper.bsky.social @DavidASuper1

Supreme Court Lecture--September 25th

Gerard N. Magliocca

The Supreme Court Historical Society awarded the Griswold Prize to Washington's Heir. I'll give a lecture at the Court on September 25th at 6PM to accept the award. The lecture is tentatively titled: "Sanctuary of the Law: Bushrod Washington's Circuit Court." I hope that some of you in the DC area can attend, and I will post further details when I get them.

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.