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.

I.  Natural Law and Positivism

In recent years, a growing body of scholarship has foregrounded the extent to which Americans of the late eighteenth century brought a set of natural-law assumptions, rather than positivist assumptions, to the project of constitutional law.  Enumerationism is a positivist project: its premise is that certain enacted texts exhaust the law on a particular topic.  (To wit, that if something isn’t traceable to specifications of congressional power in the text of the Constitution, then it isn’t within the powers of Congress.)  An enumerationist approach to reading the Constitution is accordingly more at home in a positivist legal culture—and, more particularly, a positivist legal culture that treats textual enactment as the law-creating kind of social fact—than in a legal culture that treats enacted texts as only a subset of the law.  In different ways, the essays by Bill Ewald, Jonathan Gienapp, and Abbe Gluck pushed on this point. 

Does modern enumerationism try to force an originally non-positivist charter of government into a positivist mold?  If so, it would not necessarily follow that modern enumerationism is flawed.  The adaptation of existing cultural forms to new circumstances—what the host of this blog has taught me to think of as bricolage—is a normal feature of legal systems.  But enumerationism understands itself as integral to the Constitution’s original meaning, not as a framework imposed on the Constitution retrospectively.  For our post-Erie world to read eighteenth-century constitutional thought as if it operated on the basis of our mostly positivist assumptions would be to engage in anachronism.  Of all the important thematic questions raised by the book, this is the one that I think I most underplayed. 

Here and there, the book does raise the point.  Toward the end of the first chapter, for example, I spent a couple of paragraphs explaining, with nods to some of Gienapp’s own work as well as that of Mary Bilder, David Golove, and Daniel Hulsebosch, that the idea that a constitutional question like “What can this legislature do?” could be answered by working carefully through a list of enacted clauses on the understanding that an action would be authorized if and only if something particular in that set of clauses specifically authorized it is an idea more intuitive to modern Americans, who are accustomed to thinking of the Constitution’s text as the ultimate source of all constitutional authority, than it would have been to most Americans at the Founding, when the legal culture into which Americans had been socialized tended to regard the text of a written constitution (like that of New York or Virginia) as one of several sources of constitutional law. (pp. 42-43)  In a legal culture that easily recognizes non-textual sources of constitutional law, an enacted constitutional text might settle questions to which it clearly speaks, but lawyers are less likely to think that constitutional questions can be settled on the basis of omissions or negative implications drawn from that text.  Where the text does not clearly answer a question, a lawyer in a culture like that is more likely to draw openly upon nontextual sources of authority, rather than continuing to maintain that the text is what settles the question.  (For what it is worth, it is my sense that most questions not clearly settled by the Constitution’s text are in fact settled by nontextual sources of authority in our own culture, too, but that we are more inclined than people in less positivistic systems to deny that fact, and more inclined instead to argue, and often to believe in good faith, that what we are doing when we reason nontextually is discovering the best reading of the text.  It’s also my sense that the boundary between what is and is not “clearly settled by the Constitution’s text” is substantially a function of our nontextual intuitions about the content of constitutional law.) 

Similarly, the twentieth-century shift from the model of implied powers to the model of cumulative coverage, which the book describes in chapters six and seven, is in essence a shift from a non-positivist model to a positivist one (or, perhaps more precisely, from a less positivist model to a more positivist one, or from a model where a smaller share of the social facts creating constitutional law is made up of enacted texts to a model where a larger share takes that form).  Under the model of implied powers, Congress has the powers enumerated in the constitutional text as well as some set of powers inherent in national legislatures or implicit in the decision to create this particular national legislature.  That model describes a fair amount of Supreme Court jurisprudence in the nineteenth and early twentieth centuries, up through the first years of the New Deal.  Under the model of cumulative coverage, which has prevailed since the 1940s, Congress is understood as having only the powers enumerated in the Constitution’s text, but those powers are construed capaciously enough to include any regulatory project that Congress has the political will to pursue.  (Not every regulatory project Congress wants to pursue is constitutional; the Constitution affirmatively prohibits a bunch of things.  But under the model of cumulative coverage, a project that Congress wants to pursue will not be deemed unconstitutional because it cannot be grounded in any enumerated power.)  It is not an accident that the shift from implied powers to cumulative coverage is contemporaneous with Erie Railroad v. Tompkins.  As the prevailing jurisprudence of American constitutional law became increasingly positivist and text-based, so did the Court’s approach to congressional power. 

I’ll sum up this way: in the last third of the twentieth century, the question of whether the Constitution’s text exhausted constitutional law (and especially judicially enforceable constitutional law) was overwhelmingly a question about individual rights, not a question about congressional powers.  But attention to pre-New Deal approaches to constitutional law means reckoning with the possibility of non-positive law not just when it comes to individual rights but also when it comes to governmental powers.  One must contemplate something like a natural law of government, whether in the vein of the law of nations or otherwise.  But the book does not develop this theme deeply or systematically.  It leaves the jurisprudential frame largely in the background, rather than systematically integrating its account of enumerated powers into the story of a larger conceptual transition.  The book would have been richer if I had foregrounded the conceptual transition more than I did, and the symposium participants are right to draw attention to the point.

II.  Audience and Impact

            In different ways, the posts by Will Baude, Sandy Levinson, John Mikhail, and Christina Ponsa-Kraus all address the question of the book’s audience and its potential impact—or lack thereof—on that audience.  Levinson writes (generously) that The Oldest Constitutional Question deserves a wide audience but that its ideas will not matter all that much in the end if the book cannot persuade one particularly small audience: the Supreme Court.  I get what he’s saying.  Law is a social phenomenon, or a set of social phenomena, and within our legal system there are officials whose words and actions shape the content of law, whether or not those words and actions are intellectually optimal (or defensible) when measured against various other criteria.  So even if the Court is “wrong” in the sense that its assertions about history run contrary to the way that good historians would read the relevant historical sources, or its assertions about how federalism works do not correspond to what competent political scientists would report about the actual behavior of American institutions, and so on, the Court’s views will shape what is “right” as a matter of law.  This matters.  And I do not expect this book to persuade a majority of Supreme Court Justices now sitting to change their views about congressional power.  Federal judges are fully formed adults with established worldviews, and those worldviews don’t often change in response to books that law professors write.  But I still think the book can matter, even if it can’t reach and persuade that particular (and undoubtedly important) audience.

            To think about how and why, it might be helpful to note the way that Baude’s post characterizes the book’s likely impact.  The Oldest Constitutional Question, Baude writes, makes an argument strong enough to give people who want to believe its thesis permission to do so, but it does not make an argument strong enough to compel the rest of its readership to abandon the conventional account.  There’s something important here.  To assess the persuasive capacities of an argument, one must be attentive to the predispositions of the audience—a fact that’s true both in scholarship and in litigation.  (It’s very hard for a creative legal argument, no matter how clever or how sound, to convince a court to go somewhere new that the court really doesn’t want to go.  What creative advocacy can do is persuade a court that wants to go somewhere new, but worries the law doesn’t permit it to go there, that the law in fact authorizes the court to go precisely where the court wishes it could go.)

            But in thinking about my aim in writing this book, I divide the audience differently from the way Baude does.  Rather than thinking in terms of two groups—those who are already hoping to be convinced and everyone else—I think in terms of three.  The first group is people who are hoping to be convinced.  The second group is people who are committed to the conventional account.  The third group is people who fall in neither category.  Some members of the third group are lawyers and legal academics who, for whatever reason, have no strong feelings about the constitutional law of congressional power.  Many more members of the third group are people who are not yet lawyers at all.  They are future law students.  As of now, they are neither committed to the conventional account nor hoping to be persuaded by an alternative, because they have not yet entered into conversation on the topic. 

My hope is that a book like The Oldest Constitutional Question can persuade a sizeable chunk of that audience, when it decides what it thinks, that my account makes more sense than the conventional approach.  That project doesn’t require confronting people already accustomed to seeing the world one way and asking them to change.  It just requires making a good enough argument that people would choose it if they didn’t have to incur the intellectual switching costs of giving up one paradigm for another.  Yes, that means that my aspiration is Kuhnian, in the sense that John Mikhail’s post identified.  Which is fine with me, because Kuhn was right.

            I’m not disavowing any hope of persuading mid-career professionals who up until now have accepted enumerationism as correct.  On the contrary, I know from reader feedback that the number of people deeply steeped in American constitutional law and theory who, upon struggling with my arguments, do in fact change their minds is more than zero.  Whether it will be many more than zero, I cannot say.  But even if the book fails to persuade most people who already know their way around this material and are satisfied with the conventional view, there is value in getting them to see why a person inclined to be skeptical of the conventional view would have intellectual permission to reject it.  “We assert that enumerationism is the only valid approach and that no person of intelligence and good faith could think otherwise” is a meaningfully different posture from “We adopt the enumerationist approach, but we understand that intelligent people could in good faith think something else.”  Judges (and other people) with the former stance will apply enumerationism more stringently than judges (and other people) with the latter one.  The latter stance is more consistent with a legal culture that is willing to question premises and that values intellectual modesty.  And, of course, the latter stance would mean that, if a next generation finds my views persuasive, it will be more able to adopt those views without seeming quite so heretical to its predecessor.

            So I end this discussion where the symposium began: with Christina Ponsa-Kraus’s focus on what this book means for teaching introductory classes in constitutional law.  If the ideas in the book are to have significant impact, they will need to affect the way that law professors teach.  Ponsa-Kraus writes that The Oldest Constitutional Question will make teaching constitutional law easier in some ways and harder in others: easier because it supplies an organizing scheme for understanding many otherwise puzzling features of the conventional story, if one bothers to notice them, and harder because it makes the conventional account harder to teach as unproblematic wisdom, even though that conventional account is, by virtue of its status as the official story of the law, something that all students of constitutional law must learn. 

In my own experience, the journey from having an essentially conventional view about enumerated powers (which is where I began) to having the view articulated in this book has made teaching introductory constitutional law a good deal harder.  I know that I need to teach students the conventional understanding of enumerated powers.  That’s a requirement of professional competence in a world where enumerationism is the dominant paradigm.  But given my current understanding, I also feel an obligation to teach students that the dominance of enumerationism should not make them think that the things constitutional lawyers customarily say about enumerated powers actually make sense.  As I put the point in the book’s introduction, enumerationism has a paradoxical relationship with constitutional knowledge.  One cannot be a competent practitioner of constitutional law without understanding, and being able to work within, the enumerationist paradigm.  But one who mistakes that paradigm for unfiltered truth will misunderstand a bunch of important things.  So it is necessary to teach students how to see the subject through an enumerationist lens, but a really good education in the subject would also teach students that enumerationism is just that: a lens through which constitutional law can be understood, and not the only possible lens or even necessarily the most sensible one. 

I do not see the introductory course in constitutional law as a forum for me to propagate my own views about constitutional law, and I will not measure the success of my pedagogy by reference to the proportion of my students who reject enumerationism when the semester is done.  But I do think I owe my students the opportunity to do more than assimilate the reigning paradigm.  I want them to confront the best arguments in favor of enumerationism and also the biggest problems with that framework, so that they can begin the process of thinking about what makes the most sense to them.  In that respect, my approach to teaching about congressional power is not different from my approach to teaching about judicial review, or equal protection, or any of the other subjects covered in the introductory course.  My hope is that The Oldest Constitutional Question presents a critique of enumerationism serious enough to persuade other teachers of constitutional law that their students should grapple with it. 

So if you teach constitutional law, I hope you will read the book and decide for yourself whether the perspective it articulates is something law students should confront.