Wednesday, January 25, 2023

Constructing Enumerated Powers

Andrew Coan

(coauthored with David S. Schwartz)

In a previous post, we canvassed several strong arguments that the original public meaning of the Constitution’s enumerated powers was indeterminate. What follows if those arguments are correct? Under modern originalist orthodoxy, the answer is straightforward. Constitutional decisionmakers must resolve the status of enumeration on other grounds, through “construction” or gap-filling. Originalists disagree among themselves about how construction should work, but most acknowledge that judicial precedent and historical practice have a significant role to play. Contrary to conventional wisdom, it is these two factors—not original public meaning—that supply the most persuasive argument for a Constitution of limited, enumerated powers or “enumerationism.” But here, too, the case for enumerationism has been far more assumed than argued for. 

A clear-eyed examination of the history reveals a far more complicated picture than conventional wisdom would suggest.  For most of American history, the Supreme Court has found some way to accommodate a federal legislative power to address all national problems, recognizing many significant unenumerated powers in the process. Congress, too, has routinely legislated as if it possessed a general power to address any plausibly national problem. The history is complicated, and we cannot provide anything like a definitive account in a blog post. But there are strong arguments that a toothless and ceremonial enumerationism is more consistent with historical practice and judicial precedent than the muscular enumerationism of the modern movement-conservative imagination.  

For a fuller discussion, see our new draft article “The Original Meaning of Enumerated Powers.”

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