Why Did the Framers Enumerate Congressional Powers?

John Mikhail

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 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.

The Drafting History of Article I, Section 8

The two issues I have highlighted are too complicated to address adequately in a blog post.  Yet because TOCQ is a “provocation of the best kind,” as Gienapp rightly notes, I want to take this opportunity to explore them in some detail. A useful place to begin is the drafting history of Article I, Section 8.  In terms of their origins, these powers can be usefully divided into four groups.  First, there are powers specified in the Committee of Detail’s August 6 draft that were already vested in Congress by the Articles of Confederation.  Second, there are the new powers added by the Committee of Detail to that draft.  Third, there are the long lists of powers that two delegates, Madison and Charles Pinckney, proposed adding to the enumeration on August 18, some of which made it into the Constitution. Finally, there are the powers added to the enumeration by the Convention or Committee on Postponed Parts on or after August 18.

Setting aside many complications, such as how to interpret the General Welfare Clause, these four groups can be rendered in broad strokes as follows:

Group 1: Powers Vested in the United States by the Articles of Confederation

To borrow Money on the credit of the United States;

To coin Money, regulate the Value thereof, [and of foreign Coin,] and fix the Standard of Weights and Measures;

To provide for the Punishment and counterfeiting the [Securities and] current Coin of the United States;

To establish Post Offices [and post Roads];

To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations;

To declare War…and make Rules concerning Captures on Land and Water;

To raise [and support] Armies…;

[To provide and maintain a Navy];

Group 2: Powers Added by the Committee of Detail (Aug. 6)

To lay and collect Taxes, Duties, Imposts, and Excises;

To regulate Commerce with foreign Nations, and among the several States;

To establish an uniform Rule of Naturalization;

To constitute Tribunals inferior to the supreme Court;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Group 3: Powers Proposed by Madison and Pinckney (Aug. 18)

Madison’s List:

To dispose of the unappropriated lands of the United States;

To institute temporary Governments for New States arising therein;

To regulate affairs with the Indians as well within as without the limits of the United States;

To exercise exclusively Legislative authority at the seat of the general government, and over a district around the same, not exceeding __ square miles: the consent of the Legislature of the State or States comprising such district being first obtained;

To grant charters of incorporation in cases where the Public good may require them, and the authority of a single State may be incompetent;

To secure to literary authors their copy rights for a limited time;

To establish an University;

To encourage by proper premiums and provisions, the advancement of useful knowledge and discoveries;

To authorize the Executive to procure and hold for the use of the United States landed property for the erection of forts, magazines, and other necessary buildings; 

Pinckney’s List:

To fix and permanently establish the seat of Government of the United States in which they shall possess the exclusive right of soil and jurisdiction;

To establish seminaries for the promotion of literature and the arts and sciences;

To grant charters of incorporation;

To grant patents for useful inventions;

To secure to authors exclusive rights for a certain time;

To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures;

To secure the payment of the public debt;

To secure all Creditors, under the new Constitution, from a violation of the public faith when pledged by the authority of the Legislature;

To grant letters of marque and reprisal;

To regulate Stages on the post-roads;

Group 4: Powers Added by the Convention or Committee on Postponed Parts

To regulate commerce…with the Indian Tribes;

To establish…uniform Laws on the subject of Bankruptcies throughout the United States;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries;

To grant Letters of Marque and Reprisal…;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States…;

To exercise exclusive Legislation in all Cases whatsoever, over...the Seat of Government of the United States, and to exercise like Authority over all Places purchased…for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Some clarifications about these lists: First, the powers in Groups 1, 2, and 4 are copied from the Constitution, but the brackets in Group 1 indicate revisions that were not part of the Committee of Detail’s draft. Second, some of the powers enumerated by that committee, such as appointing a Treasurer and declaring the punishment for treason, are not included here because they were later removed from the Constitution or relocated outside of Article I. Third, the Committee of Detail did not enumerate all of the powers vested by the Articles of Confederation; instead, they omitted some of them, probably inadvertently in some cases, but deliberately in others. Fourth, when the Committee of Style revised the Constitution from September 10-12, it made edits to some of these powers, such as grouping them differently in some cases, but it did not add any new powers to the enumeration.  Finally, for the sake of simplicity, I have assumed that the General Welfare Clause sets forth three purposes for the taxing power, not independent powers over debts, common defense, and general welfare; however, David Schwartz’s important work suggests that this assumption may be mistaken. The relevant upshot of this catalogue is that all of the powers specified in Article I, Section 8, can be traced to one of these four groups. And this observation, I want to suggest, supplies us with a fresh vantage point for considering why these powers were enumerated. Significantly, the answers seem to differ in each case. 

The Group 1 powers are mostly royal prerogative powers derived from Blackstone. As Primus explains—building on a thesis first proposed by William Crosskey, and elaborated more recently by Michael McConnell—enumerating these powers was primarily a way to empower Congress in relation to the President. Three simple vesting clauses alone would not have worked because of uncertainty about which powers were legislative, executive, or judicial (55-57). Furthermore, the proximate reason why these powers were included in the Committee of Detail’s draft is not hard to discern.  One of the resolutions approved by the convention on July 17, a revision of Resolution VI of the Virginia Plan, stated that the national legislature “ought to possess the legislative Rights vested in Congress by the Confederation,” along with the power “to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” (2 Farrand 131-32, emphasis added). For good reasons, Primus focuses most of his attention on the more controversial second part of this resolution, but one should not to lose sight of the more mundane first part.  By enumerating the Group 1 powers, the Committee of Detail was probably fulfilling this part of its mandate.

Group 2 consists primarily of a set of core national powers, such as taxation, commerce, and naturalization, that the United States lacked the express authority to exercise under the Articles. This group also includes the power to create lower federal courts (for which the convention had adopted a separate resolution) and the power to call forth the militia for vital national security interests, along with the all-important Sweeping Clause.  Enumerating these powers was critical to achieving the purposes for which the convention was formed in the first place.  In the context of the times, it would not have made sense to leave these powers to implication, and as far as I recall, no one suggested doing so.  Enumerating these powers also can be viewed as empowering Congress in relation to the President, and to some extent in relation to the States. Regardless, enumerating them was meant to empower Congress, not to limit it.

What about the powers in Group 3? Why did Madison and Pinckney propose adding so many more powers to the enumeration on August 18, more than doubling its length?  And why did some—but only some—of these powers make it into the final version of Article I or other parts of the Constitution, along with the other enumerated powers listed in Group 4? Here is where I want to suggest that the most likely answers to these questions may diverge from the generally-correct, three-function thesis Primus defends in TOCQ.  My suggestion is that, to a significant extent, both Madison and Pinckney were trying to limit the authority of the federal government rather than empower it when they made these proposals.  With some exceptions, their main goal was to weaken the federal government by converting implied powers into enumerated ones. If this hypothesis is correct, then it might serve as a friendly amendment to Primus’ account of Madison’s attitudes toward enumerationism, since it suggests that Madison wanted to restrict federal power at this point of the convention, well before he wrote his Federalist essays and defended the Constitution at the Virginia convention (cf. 151-165). The biggest turning point in Madison’s thinking was not the opening session of the First Congress or the debate over the First Bank in 1791, but the events of July 16-17, 1787, and how the Constitution was then drafted by the Committee of Detail to create a government of both enumerated and implied powers.

A Closer Look at the Sweeping Clause, Slavery, and a Bill of Rights

To dig more deeply into these topics, it is important to recall that when Madison and Pinckney made their August 18 proposals, the Sweeping Clause was already part of the draft constitution. Because that clause plausibly incorporated the second part of Resolution VI (including its broad reference to “the general Interests of the Union” that was added to it on July 17), the question raised by Madison’s and Pinckney’s proposals was whether enumerating each of these powers was unnecessary because each was—or most were—already included in the “other powers vested by this Constitution in the Government of the United States” to which the Sweeping Clause referred.  For at least some of those proposals, such as the power to grant corporate charters, that is what most delegates likely believed.  Most of them probably agreed with James Wilson that the Government of the United States was vested with the all of the implied powers of any other nation, including the power to legislate on any matter affecting the national interest, or to which the States were incompetent.  And they understood the power to charter a national bank to be just that kind of power.  The convention records, the records of the First Congress, and perhaps above all the legislative debates over the First Bank, which Primus explicates so well in this book (173-208) and his pathbreaking article on this topic, strongly support this interpretation. 

At this point in time, however, Madison and Pinckney were likely pursuing a different agenda. For a variety of reasons—principally involving slavery—they anticipated that a government of implied powers, unevenly controlled at the outset by eight Northern states (16-10 in the Senate and 36-29 in the House according to the proposed Constitution), would be difficult, if not impossible, to ratify in Virginia and South Carolina.  And they knew that the Sweeping Clause’s reference to “other powers” vested in the Government of the United States could be used to license that broad understanding. Accordingly, their attempt to enumerate so many additional powers on August 18 was probably motivated as much, if not more, by the third function of enumeration Primus identifies (limiting the scope of federal power), than by the first and second functions (empowering Congress in relation to the States or the President).  Their goal was to undercut the Sweeping Clause by making explicit many of the implied powers it encompassed.  The logic of this strategy seems clear: each power added to the enumeration would make it more plausible to maintain during ratification and thereafter that the enumeration was exhaustive. In this manner, Madison and Pinckney sought to lay a stronger foundation for the enumeration principle and internal limits canon, both of which they predicted might be critical to restricting the government’s power over slavery.

To be sure, Madison and Pinckney were not alone in thinking that enumerationist talking points would be useful during ratification.  At the convention drew to a close, many delegates were likely inclined toward that view, especially when it came to explaining why the Constitution lacked a Bill of Rights. Slavery was the one-word reason for that omission, too, for the reasons Primus lucidly explains both in this book (107-114) and his recent article in the Journal of American Constitutional History.  Primus covers this ground very well, but one piece of evidence I would add to his already persuasive account is the remarkably candid letter that William Pierce, a convention delegate from Georgia, sent to St. George Tucker on September 28, 1787, shortly after the convention ended. In explaining why there was no Bill of Rights, Pierce wrote:

Many objections have been already stated to the Constitution because it was not founded on a Bill of Rights; but I ask how such a thing could have been effected; I believe it would have been difficult in the extreme to have brought the different states to agree in what probably would have been proposed as the very first principle, at that is, ‘that all men are born equally free and independent.’ Would a Virginian have accepted it in this form? Would he not have modified some of the expressions in such a manner as to have injured the strong sense of them, if not to have buried them altogether in ambiguity and uncertainty? (emphasis original)

Pierce’s letter, which was published in the Georgia Gazette on March 20, 1788, is one of the most revealing contemporaneous explanations we have for why the original Constitution did not include a Bill of Rights, and it reinforces the thesis, which Bill Ewald first outlined many years ago and I have also defended, that slavery was the real reason for that omission. Pierce’s candid remarks about deliberate “ambiguity and uncertainty” are also worth bearing in mind when one considers topics such as Wilson’s State House Yard Speech and his evasions about implied powers at the Pennsylvania Convention, which Primus unravels so judiciously in Chapter Four (129-142, 142-146). When I discovered in the course of researching The Necessary and Proper Clauses that Wilson had twice diverted his listeners’ attention away from the Sweeping Clause and toward the enumerated powers and the first Necessary and Proper Clause (the “Foregoing Powers Provision”) at the Pennsylvania Convention, I was not surprised. Head fakes of that sort are all over the documentary records, especially when slavery is involved.  Federalists engaged in these deceptive practices quite a bit, but so did Antifederalists. The stakes were high, after all, and the Constitution had to be framed and ratified in a context of profound disagreement over topics like slavery.  One of the great virtues of TOCQ is that Primus understands all of this, and as a result, he handles the primary sources with great care, sensitivity, and interpretive subtlety. Along with the book’s many other admirable qualities, this makes it an invaluable resource for students who want to understand how strategic ambiguity actually worked at the founding.

Although the evidence is not conclusive, it seems likely that Wilson was fully on board with the enumerationist ratification strategy that informed Madison’s and Pinckney’s August 18 proposals. Further, it seems probable that Wilson's State House Yard speech reflected the basic Federalist thinking on this issue. Yet in mid-August, after the Great Compromise had been reached, the Bedford resolution had been adopted, and the Committee of Detail had returned its report, Madison and Pinckney were not at all on the same page with Wilson when it came to enumerated and implied powers. Madison and Pinckney were genuinely concerned about the Sweeping Clause, whereas Wilson was not. The clause was his handiwork, after all, and it made ample room for the implied powers that he believed were essential to enabling the United States to flourish. Nor was Wilson alone; many delegates who also favored a much more powerful national government probably understood that one of the benefits of the Sweeping Clause was how it reconciled enumerated and implied powers.

The key feature of the Sweeping Clause in this respect was its distinction between legislative powers and government powers. That distinction is what allowed Federalists to maintain that while Congress’s powers were enumerated, the Government of the United States was vested with all of the implied powers of any other nation, including the power to fulfill all of the purposes for which that government was formed. The consistency of these propositions, and the authority of Congress to carry into effect these implied powers, derived from the fact that the last clause of Article I, Section 8 was itself an enumerated power, which enabled Congress “to make all laws that shall be necessary and proper for carrying into execution” not only the other enumerated powers in Article I, Section 8, but also “all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  The Sweeping Clause thus gave Congress the enumerated legislative power to implement the government’s unenumerated powers.

If this all seems a bit convoluted and head-spinning, that may have been part of the point. As John Marshall delicately observed some thirty years later, “The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not its weakness. Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power, than its limitation.” Nor did Federalists seek to remove the confusion during ratification; on the contrary, they avoided talking about the full scope of the Sweeping Clause, for understandable reasons. They did not want to put the Constitution in jeopardy by explaining just how powerful the new government actually was.  Wilson’s speeches are one illustration of this evasive strategy, but so are Federalist 33 and 44, both of which were masterworks of obfuscation. In the former, Hamilton artfully misquoted the Sweeping Clause, silently erasing its three most revealing words—“and all other”—and focusing instead on the Foregoing Powers Provision and a specific enumerated power: the taxing power.   In the latter, Madison also misquoted the Sweeping Clause, leaving off the entire last third of the clause and thereby disguising the fact that the “other powers” vested in the “Government of the United States” to which it refers are distinct from those powers vested in Congress, the President, or other Departments or Officers of the United States.  If one steps back from all these clever tactics and asks a simple question—Did the Federalists ever affirmatively defend the Sweeping Clause as it was written and likely meant to operate—the answer appears to be a resounding No.  There seems to be little basis, then, for the widespread assumption that Federalists gave candid and reliable assurances about the limits of implied powers during Ratification.  A more accurate interpretation requires us to come to grips with the fact that Wilson, Hamilton, and Madison were such good propagandists that, for over two centuries, readers have been fooled into reading the Sweeping Clause in a manner at odds with what it actually says.

With the Sweeping Clause firmly embedded in the Constitution, it was no longer necessary for theorists like Wilson to deny that Congress was limited by its enumerated powers, or to insist that Congress had unenumerated powers, because all of the “great powers” that mattered, such as providing for the common defense and general welfare, were vested in the Government of the United States itself.  The new landscape was also reflected in a subtle shift in legal language that Wilson had facilitated while serving on the Committee of Detail. Under the Constitution, Congress was now a mere legislative body—not “the United States in Congress assembled” of the Confederation, to which Wilson had referred in his bank argument.  And the Government of the United States was now a full-fledged national government, with supreme legislative, executive, and judicial powers (an unmistakable affirmation of national authority that the Committee of Style wisely removed from the draft in the final days of the convention). As Jonathan Gienapp has explained so well, for Federalists like Wilson, everything thus ultimately flowed from the answer to a simple question: Are we a Nation? And for Antifederalists like Patrick Henry, the Constitution’s Preamble and especially its first seven words (“We the People of the United States”), along with provisions like the Sweeping Clause, decisively—and threateningly—answered that question.

Madison, Wallace, and the Big Picture

I suspect that Primus would agree with a good deal of what I have said thus far, especially as it applies to Wilson and to Pinckney and the other South Carolina delegates. Indeed, he indicates as much in various places (49, 59-62, 79-80, 135-36, 142-46, 146-151). In fact, to some extent I am just elaborating one of his own main points of emphasis in TOCQ: the Framers disagreed with one another over federal powers, and some delegates wanted enumerated powers in order to limit the federal government, while others had different designs in mind. 

But what about Madison?  Where does he fit into this tug-of-war over enumeration? Primus tells a rich and fascinating story about Madison, which ties together several well-known episodes that scholars have pondered over for decades.  These include Madison’s pre-convention exchange with Wallace (35-46), his views and speeches about enumeration and state sovereignty at early stages of the convention (79-82, 93-94), his remarks about enumeration and a bill of rights in Congress on September 27 (125-129), his analysis of legislative power in several Federalist essays (151-158), the early skirmish over implied powers in the Oath Act (178-184), Madison’s efforts to locate the capital on the Potomac (184-188), and, of course, his arguments in the Bank Debate (188-208).  Along the way, Primus also discusses the omission of the term “expressly” in the Virginia Form of Ratification (158-165) and John Marshall’s approach to implied powers in McCulloch v. Maryland (214-222) (topics that I link together somewhat differently in this essay on Schwartz’s outstanding book on McCulloch).  The fresh readings Primus offers of all these events are deeply interesting and insightful. Yet I remain uncertain about some of the lessons he appears to draw from them.

If I understand him correctly, Primus infers that Madison was skeptical about the enumeration principle and the internal limits canon over the early part of his career, including the spring of 1787, when he was “thinking of enumeration mostly as a technology of empowerment” and his main objective was “to invigorate the national government” (81).  By the time one gets to the First Congress, however, Madison seems to have embraced these doctrines, albeit mostly for political rather than for principled reasons.  Because Madison is so often associated with these ideas, and because they, in turn, are so influential in our constitutional culture, this is one of Primus’ most striking claims in TOCQ. He uses Madison’s skepticism and opportunism about enumerationism as a useful heuristic device to open his readers eyes to a new way of thinking about enumerated powers. Because his likely aim is to reach his readers where most of them currently are, one can readily understand why he does so. It seems like a good choice, and Primus skillfully weaves this material on Madison into his narrative.

What seems less clear to me is how to assess some notable gaps in Primus’ account of the convention and other events of 1787-1788 and how they might bear on the various beliefs and motivations he attributes to Madison. In addition to passing by the August 18 proposals, Primus does not appear to discuss anything else Madison said or did at the convention (other than take notes) between June 21 (93-94) and September 8 (108), when he was appointed to the Committee of Style. For example, he does not discuss Madison’s ominous warning on July 7 that if state equality in the Senate were adopted, Virginia would refuse to support a strong government, so that “every effectual prerogative would be withdrawn or withheld, and the new Govt. would be as impotent and as short lived as the old” (1 Farrand 551).  He also does not address the crushing personal defeats Madison experienced on July 16-17 when the two process limits to which he was so intently wed—a population-based Senate and a congressional veto over state laws—went down in flames. Nor, finally, does he consider whether Madison’s narrow interpretations of federal power in Federalist 37-58 and at the Virginia Convention were ultimately designed to undercut, rather than promote, the strong national government that had been designed in Philadelphia. These and other features of the book make me wonder how effective and durable his apparent strategy of enlisting the “early” Madison to his side of the enumeration debate can really be.

To bring this commentary full circle, consider again Madison’s advice to Wallace.  An essential piece of context for understanding that advice was the shared belief of these two elite Virginians that slavery should be protected in the Kentucky constitution from increasingly active efforts to abolish it, which had begun to penetrate even states like Virginia. Madison did not address this topic explicitly in his letter, but his trademark “&c &c” when discussing prohibitions on “seizing private property for public use without paying its full Valu[e]” and “licensing the importation of Slaves” was enough to get the point across. And in case Wallace missed the point, Madison later referred to what he had “hinted at” in the course of discussing how private property should be represented and protected in a good limited government.

In light of this background, it seems noteworthy that when Kentucky’s First Constitutional Convention met from April 2 to April 19, 1792, in Danville, the delegates did what Madison recommended. With Wallace serving on its drafting committee, the convention framed a constitution that prohibited uncompensated emancipation and addressed a variety of other slavery-related issues with a mix of enumerated powers and affirmative prohibitions:

ARTICLE IX.  The Legislature shall have no power pass laws for the emancipation of slaves without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated; they shall have no power to prevent emigrants to this State from bringing with them such persons as are deemed slaves by the laws of any one of the United States, so long as any person of the same age or description shall be continued in slavery by the laws of this State; that they shall pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a charge to the county in which they reside; they shall have full power to prevent slaves being brought into this State as merchandise; they shall have full power to prevent any slave being brought into this State from a foreign country, and to prevent those from being brought into this State who have been, since the first day of January, one thousand seven hundred and eighty-nine, or may hereafter be, imported into any of the United States from a foreign country. And they shall have full power to pass such laws as may be necessary, to oblige the owners of slaves to treat them with humanity, to provide for them necessary clothing and provisions, to abstain from all injuries to them extending to life or limb; and in case of their neglect or refusal to comply with the directions of such laws, to have such slave or slaves sold for the benefit of their owner or owners (emphasis added).

In theory, Madison would have liked a provision like this to be added to the federal Constitution.  But he knew that any such list of explicit “mays, musts, and must nots” would be impossible because of a large bloc of antislavery delegates at the convention and the growing impact of abolitionist thought across much of the nation. Those constraints led him to pursue a variety of procedural devices instead, including proportional representation, a legislative veto, and a Council of Revision.  Historians have consistently underestimated how much Madison’s interest in these and other mechanisms of limited government were motivated by his desire to protect domestic slavery from what he believed would be “unjust” schemes of abolition or emancipation, at both the state and federal levels, along with his solicitude for other slaveholder interests. My concern is that TOCQ may underestimate this too, with ripple effects for its broader narrative.

Even if I am correct about this, however, it may not matter very much at the end of the day. The core textual, structural, and historical arguments about enumeration and federal power that Primus unfolds so elegantly in this book can stand or fall on their own terms. Primus has bigger fish to fry than persuading readers like me about this or that interpretation of Madison, and his book covers far more ground than the topics on which I have focused here. Importantly, this includes analyzing many normative and practical aspects of how federalism actually works in our modern world, a demanding set of objectives that TOCQ makes seem easy. Primus has a rare gift for crafting vivid analogies and colorful illustrations to make complex theoretical points crystal clear.  In short, this book is the work of a great teacher and master craftsman, who undoubtedly has done what he set out to do: produce an exceptional book for introducing a wide variety of readers, including smart, sophisticated, and open-minded law students, to a new way of thinking about constitutional law, one that could make a real difference in their lives. That forward-looking approach, seeking to inspire the next generation, is another way that paradigm shifts occur.  It is a worthy endeavor, and the fruit of his labor is a remarkable achievement.