Balkinization: Enumeration and My Discontent

Enumeration and My Discontent

Guest Blogger

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

Christina D. Ponsa-Kraus

Richard Primus’s pellucid, meticulous, and entertaining book, The Oldest Constitutional Question, will make 1L Constitutional Law simultaneously easier and more difficult to teach. Easier because we now have an invaluable scholarly treatment of the proverbial oldest constitutional question: that of “the proper division of authority between the Federal Government and the States,” as the book’s epigraph, a quotation from New York v. United States (1992), puts it. Harder because Primus’s comprehensive and compelling critique of the currently dominant answer to this question—“enumerationism”—could make it even more challenging to teach the Rehnquist and Roberts Courts’ enumerationist cases with equanimity.

“Enumerationism,” Primus explains, consists of two rules: first, “the rule that Congress can act only on the basis of powers specifically listed in the Constitution” (the “enumeration principle”); and second, “the rule that the enumerated powers, added together, amount to less legislative power than the federal government would have if it were a government of general jurisdiction” (the “internal-limits canon”) (p.2). The Court has not only endorsed this understanding in three important cases on the commerce power over the past three decades, but has described enumerationism as an uncontested fact about our constitutional law. But I’ve never bought it. (Primus’s definition, yes. Enumerationism itself, not so much.) I already have a hard enough time keeping it together when I teach those three cases: United States v. Lopez (1995), United States v. Morrison (2000), and NFIB v. Sebelius (2012). In the first two, the Court struck down federal laws on enumerationist grounds, reasoning that the laws exceeded the scope of the commerce power because the activities they regulated were not “economic”—regardless of whether Congress regarded them as such and regardless of whether they had a massive effect on interstate commerce either way. In the third, the Court reached the same conclusion, this time on the ground that an individual’s decision not to buy health insurance constitutes “inactivity” rather than “activity” and therefore lies beyond the reach of the commerce power (though it then upheld the law as an exercise of the power to tax).

Courts determine whether Congress has the power enact a law how, again? You’re joking, right? Wait, you’re serious? (Says the voice inside my head.) By the time we get to the part in NFIB where Chief Justice Roberts marms the reader with the observation that the Framers were not metaphysical philosophers at literally the same time that he requires members of Congress to discern the distinction between “activity” and “inactivity” when they grapple with how to solve a national crisis, my lectern lies toppled over and my notes strewn across the floor, as I stare wild-eyed at my PowerPoints and grip a piece of chalk that has snapped in two.

Okay, just kidding, it’s not quite that bad—though I did once semi-accidentally tear a page out of the casebook while teaching these cases.

Primus has disrobed Emperor Enumerationism, who now stands stark naked in the freezing cold. Yet Primus himself might take issue with that description, which concededly does not credit him sufficiently for the equanimity with which he engages opposing arguments. As he should: despite my own no-love-lost relationship with Lopez, Morrison, and NFIB, enumerationism has a storied history and formidable defenders, at least some of whose arguments deserve the respectful treatment Primus has given them. The book is a model of how to combine expertise and analytical rigor with fairness and generosity toward one’s adversaries. No sooner has Primus canvassed every possible argument in support of a given point than he qualifies it with a comment along the lines of, I’m not saying that the opposing argument is wrong; I’m just saying that my revisionist account is plausible.

Still, over and over, the challenge to enumerationism comes out ahead. If you ask me, Primus’s arguments are not merely plausible; they are persuasive, based on the criteria that we all agree apply: history, structure, text, doctrine, practice. And his politic style is not merely appropriate but essential, insofar as he is addressing a view as entrenched as enumerationism has become.

Enumerationism dates to the beginning of the Republic. Yet as Primus shows, so do other understandings of federal power. Enumerationism has always been just one of them—and not even always the dominant one—and never the one best reflected in actual governmental practice. Yet as of the end of the twentieth-century, enumerationism has taken hold on the Court, where majorities speak of it as if it were a self-evident truth. As Primus observes ruefully, “[t]he twenty-first-century judiciary seems inclined to resolve the longstanding dissonance between enumerationist theory and nonenumerationist practice by forcing practice to conform to theory” (p.356).

You wouldn’t have an inkling of the dissonance between theory and practice (and history and structure and doctrine and text) from reading the enumerationist opinions in the commerce cases on the Rehnquist and Roberts Courts, which purport to abide by a longstanding consensus. “We start with first principles,” Rehnquist intones in Lopez. “The Constitution creates a Federal Government of enumerated powers. See Art. I, §8.” Okay, let’s see Art. I, §8. I’m looking at it… and call me crazy, but while I do see a list of powers there, I would swear it supports not what Rehnquist says about it, but what Primus does: namely, that Article I, §8 “neither states nor illustrates the proposition that the federal government can only exercise its enumerated powers” (p.271). It’s just not there.

A little later in Lopez the same thing happens again. “As Chief Justice Marshall stated in McCulloch v. Maryland [1819],” Rehnquist declares, “’[t]he [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it… is now universally admitted.’” Those words are there, yes. But you would have to redact much of the rest of opinion to come away from it believing that it makes the case for enumerationism. Not even the quotation above makes the case, insofar as the “principle” it describes concerns powers “granted,” not just “enumerated” (the former is a larger category than the latter, as Primus discusses). And let’s not forget that Marshall simply assumes that the federal government has the nowhere-enumerated power to annex territory, proclaiming that “this vast Republic” extends “from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific,” and insisting that the government must have discretion to choose the means with which to exercise control over the continent, including by marching armies up one side of it and down the other.

In other words, McCulloch identifies the end served by the means of a national bank as that of conquest. Do not see Art. I, §8. To read McCulloch as an enumerationist decision by plucking out of it isolated sentences that sound in enumerationism is like reading Moby Dick and summing it up as a book about a guy who wants people to call him Ishmael.

And then it happens again. “See also Gibbons v. Ogden [1824],” Rehnquist’s Lopez opinion instructs us next, and a parenthetical quotation follows: “The enumeration presupposes something not enumerated.” As Primus points out, people do regularly quote this line from Gibbons in support of enumerationism. But then he skillfully shows us that the line can be understood to refer neither to the Constitution as a whole nor even to Article I, §8 in its entirety, but rather to the enumeration of categories in the Commerce Clause itself: commerce with foreign nations, and among the several states, and with Indian tribes. Read this way, Primus argues convincingly, it does not lead to an enumerationist understanding of federal power.

And by the way, what about the rest of Gibbons? What about, for instance, the part where Marshall explains that “[t]he wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which [the people] have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments” (emphases added). Why should the ambiguous and inconclusive statement that “[t]he enumeration presupposes something not enumerated” outweigh Marshall’s clear and sensible exposition of what actually restrains Congress?

Thankfully, Primus builds his case with a great deal more than competing quotations from Court opinions, highlighting the evidence of alternative understandings in important debates such as those over the Bank of North America, the Virginia and New Jersey Plans, the Bank of the United States, and the federal power over slavery. These alternative understandings include the view that the federal government has not only those implicit powers necessary to carry into effect its express powers but implicit powers encompassing even more than that; and that the government has powers that result from its status as a national government (“resulting powers”) or, what is similar but not identical, that it has powers inherent in sovereignty.

That last category takes us beyond the canon, to cases that “tend to live on the edge of the constitutional lawyer’s professional consciousness” (p.221). Primus focuses on three: Prigg v. Pennsylvania (1842), Knox v. Lee (1871), and United States v. Curtiss-Wright (1936). That these and quite a few other cases expressing alternative views of federal power live on the edge of the constitutional lawyer’s professional consciousness is itself evidence of how blinkered the canonical story is, for the ideas of resulting powers and powers inherent in sovereignty trace their origins to the Founding era at least as much as does enumerationism. As Primus discusses, the proposition that the federal government has resulting powers and/or powers inherent in sovereignty arose during the debate over the Bank of North America, when James Wilson became perhaps its best-known exponent, arguing that even under the Articles of Confederation “the United States ha[d] general rights, general powers, and general obligations… resulting from the union of the whole….” Wilson did appear to embrace enumerationism several years later in his speech supporting ratification, but Primus makes a plausible case that Wilson likely made that argument in that moment as a matter of strategy, not due to a change of heart. And in any event, the point is that there have always been alternative, and prominent, accounts of federal power.

Enumerationists respond to these alternative accounts and defend their own with what Primus terms the “MustBeSomething Rule” and “Unlimited Congress Fallacy” (p.244) (needless to say, enumerationists don’t endorse the “fallacy” part of the latter): the related ideas that there must be something Congress can’t do and that enumerationism is not just the correct reading of the Constitution but a necessary one, because, as Primus accurately summarizes Rehnquist’s reasoning in Lopez, “an absence of internal limits on congressional power would be tantamount to there being no limits at all on Congress.” (p.272) The obvious response, as Primus points out, is that Congress is limited—externally: by the separation of powers, affirmative constitutional limits, the political process, and, as discussed later in the book, state sovereignty, including as enforced in the anticommandeering jurisprudence, which he rightly observes “rests less on an analysis of what is missing from Congress’s enumerated powers than on a set of ideas about the distinctive status of state governments within the federal system” (p.307).

So why would a judge suggest that without internal limits there are no limits at all? “Competent jurists,” Primus observes gamely, “are presumably always aware that the Constitution imposes external limits on congressional power” (p.246). Then he proceeds, admirably without showing any signs of being about to tear a page out of any casebook, to speculate on why said jurists nevertheless say things that imply otherwise. It must be, he proposes, that the lack of internal limits sounds more ominous if one omits mention of external limits. Undeniably it does. Also ominous: a judge pretending not to know what we all know he knows.

As someone who works on the constitutional status of the U.S. territories, I’ve spent a lot of time on the edge of consciousness, and I’m here to report that an understanding of the constitutional status of the territories might offer yet another salutary corrective to enumerationist fears of an unlimited federal power. When it comes to the territories, the unlimited Congress becomes less of a fallacy and more of a reasonable fear. Constitutional rights do protect territorial residents, albeit not identically to the way they protect people in states. But neither the separation of powers nor the political process nor sovereignty protect territorial autonomy.

Federal plenary power over territories consists of the combined powers of both the federal government and a state. The federal government can create, modify, or eliminate a territory’s government. It may allow or deny it the opportunity to adopt a local constitution. It may govern the territory directly or govern it indirectly by delegating powers to it. It may appoint its Governor or allow territorial residents to elect the Governor. It may establish an Executive Council with the power to veto territorial legislation, as it did in the territories throughout the nineteenth century and into the twentieth, and as it reprised more recently in different form with the Financial Oversight and Management Board, which Congress created to manage Puerto Rico’s economic crisis.

When it comes to territorial autonomy, that is, the federal government can, seemingly, do whatever it wants. So when enumerationists concerned with state autonomy cite the threat of an unlimited Congress in support of internal limits on federal power, I’m not impressed.

More to the point, when I wonder what would snatch autonomy from the jaws of federal plenary power over the territories, enumerationism doesn’t even make the cut. Primus analogizes the protection that external limits provide to a shield. Enumerationists see internal limits that way too. But from the territorial perspective, relying on the internal-limits canon to protect autonomy is like trying to fend off a sword with a flyswatter. Robust affirmative limits, real separation of powers, recognized sovereignty, and—more than anything else—inclusion in the political process: it is in these external limits on federal power that genuine and lasting autonomy can be found.

Christina D. Ponsa-Kraus is the George Welwood Murray Professor of Legal History at Columbia Law School. You can reach her by email at cponsa@law.columbia.edu.

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