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While Crosskey’s book originally made a big splash, his ultimate legacy has been checkered.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.