So this brings me to my altogether heartfelt blurb that can be found on the back jacket of what I describe as “Richard Primus’s stunning book” The Oldest Constitutional Question.  It is 

a landmark achievement in both the history and theory of the American constitutional order. With meticulous attention to historical sources and beautifully argued analysis, he upends many decades of conventional wisdom about the nature of national power, including the remarkably unexamined cliché that the Constitution created only a limited government of enumerated powers. No one, including members of the Supreme Court, can be truly literate about these issues without grappling with Primus’s arguments and evidence.

I could end my own contribution to this symposium now.  For the major point is that anyone hoping to profess literacy about the nature of the Constitution must read Primus’s book in its entirety and not, as is so often (and understandably) the case, rely on symposia like this one to serve as an adequate substitute. Life is short, and way too many books, not to mention articles, compete for our scarce attention.  Most probably do not have to be read fully and carefully in order for one to grasp their arguments, become tolerably familiar with their strengths and weaknesses, and then move on to the next competitor for time.  This one does, not least because it successfully “upends many decades of conventional wisdom about the nature of national power.”  To be told the argument in bare outline—that everything we’ve accepted as the simple ontological reality of a “limited Constitution of assigned (and enumerated) powers” is basically wrong—will scarcely be accepted without submission to the overwhelming evidence that Primus brings forth.  One can readily anticipate a great deal of resistance to his argument.  After all, can it really be true that much of what we’ve been taught (and teach) is mistaken? That is not a conclusion easily to be accepted.

It is as if one were a traditional Newtonian physicist in the mid-1920s being confronted by the strange and disruptive ideas identified with quantum physics.  As Thomas Kuhn suggested in The Structure of Scientific Revolutions, science (and intellectual life more broadly) can hardly be described under the placid metaphor of a conversation where the better idea, as Habermas might suggest, is accepted simply because it is better and adherents of the older, and now disproved, ways of thinking are “good losers” who readily concede the point.  Instead, “conventional wisdom” has a decided power of its own, and challenges to it are far more likely to be dismissed, sometimes angrily, rather than accepted with equanimity.  The best explanation for changes in “conventional wisdom” is that adherents of the old (and intellectually defeated) paradigms retire or die, while newcomers socialized to the new truths take their positions (and mold the consciousness of future generations accordingly).  Life tenure in office may be good for those who have such job security, but it is not at all clear that it is conducive to what is sometimes labeled intellectual “progress.”

Primus’s argument is far more radical than a simple recognition, conceded by many who are not happy with the work product of the Supreme Court since the New Deal, that the doctrine of “enumerated powers” as a genuine limit on what the national government can do has not proved truly successful.  Ernest Young, for example, has written of the near futility of relying on this doctrine to claw back contemporary congressional power.  Anyone who teaches “constitutional law” must teach that Congress, especially through the Commerce Clause, has a de facto “national police power.”  There are, to be sure, some trouble cases, especially the Sebelius case in which a majority of the Court rejected the validity, under the Commerce Clause, of the Affordable Care Act’s requirement that the citizenry purchase medical insurance.  But, of course, Chief Justice Roberts pulled the taxing power out of the doctrinal hat to uphold the Act, much to the consternation of many conservatives, including, of course, the four angry dissenters. 

But the point is that Primus is doing far more than offering a descriptive account of the Court and making the obvious point that many of its decisions are hard to explain within the rubric of “enumerated powers” as a genuine limitation on governmental activity.  He does not, incidentally, proffer the foolish argument that the national government therefore “can do whatever it wants to.”   Like all liberals, he does believe in limited government.  But the limits come from explicit prohibitions, including those in Article I, Section 9 or, most importantly, within the Bill of Rights and some other amendments added well after 1787 and not from inferences to be drawn from the enumeration of powers set out in Article I.

I write as someone thoroughly convinced by Primus’s careful research.  Already I have assigned part of the book in a course on federalism that I taught in the spring of 2025 and will teach again in 2026.  I now view as “inoperative” the contrast that I used to draw between a national government with enumerated powers and state governments with basically unlimited powers save for those explicitly entrenched upon by the constitution’s text.  My hope is that all other legal academics will change their own syllabi accordingly. 

But, frankly, it may not matter all that much, at least in the foreseeable future, how successful Primus may be in affecting the way that legal academics think, write, and teach.  For the reality of our constitutional system is that the majority of the nine members of the United Supreme Court are empowered to engage in what John Austin called “performative utterances” that serve to constitute the legal reality within which we operate.  It is misleading to refer to their writings as mere “opinions,” for that suggests, as in conversations among equals, that one is altogether free to reject what is being opined because, after all, it rests on demonstrably shaky, even false, assumptions.  Instead, if one is writing a majority opinion “for the Court,” thinking—or writing—can in fact create the legal reality regardless of what dissenters, whether on the Court or in the outside world, might justifiably think.  Alexander Bickel once referred to the Supreme Court as a “vital national seminar.”  If so, it is one led by a decidedly authoritarian leader who demands that his utterances be accepted as definitive and who will have no compunction in failing any student who dares to suggest otherwise.  Purported participants are not taking part in a genuine dialogue, but, rather, might be analogized to those petitioning the Czar, or even to inhabitants of a Kafka novel, hoping that the all-powerful director will deign to read their missives and then—perhaps, but who really knows—to be influenced by their pleas.

There is an old joke on what one calls the person who graduates last in his class at medical school.  The answer, of course, is “doctor.”  Similarly, one can ask what we call the stipulations of a majority opinion with which we might vehemently disagree.  The answer, alas, is “the law.”  To paraphrase Elena Kagan’s (in)famous statement about “textualism,” “we are all positivists now” at least in this specific sense.  Just as libertarians like Randy Barnett readily conceded that the New Deal decisions established “the law of the land” even as he (like Robert Bork) criticized their validity if one believed that they violated the original meaning (however defined) of the 1787 Constitution, so must contemporary liberals like myself reluctantly accept the legal status of a variety of decisions that we find abhorrent.  Even constitutional “protestants” like myself, who reject the arguments undergirding “judicial supremacy,” must nevertheless teach our students that we do live in a largely “catholic” jurisprudential culture where opinions of the Supreme Court are indeed treated as “law.”  Indeed, at the present moment, when one regularly expresses fear that Donald J. Trump will defy judicial orders, it is especially fraught to suggest that judicial opinions should have to be fully persuasive in order to be binding.

And “the law” includes not only the barebones commands, but also in many ways the intellectual scaffolding, including views of our history, by which the Court purports to justify those commands.  I can well remember, as an impressionable youth in college and even graduate school, being swept away by Justice Hugo Black’s historical account of the First Amendment.  Only much later did I realize that there were problems in his account, however inspiring it might have been.  Under no circumstances today would I advise a student to emulate my own past credulousness with regard to the “history” offered within the pages of the United States Reports.  But then, of course, the question becomes whom can one trust to provide authoritative accounts of what Jack Balkin identifies our constitutive historical memories?

Whatever my own esteem for his book, as a practical matter it is not enough for Primus to persuade his fellow academics of the validity of his argument.  There is an 800-pound gorilla in the room with regard to issuing pronouncements about our Constitution.  So Primus must, in effect, also persuade at least five members of the Supreme Court to upend much of their established jurisprudence going back at least as far as McCulloch v. Maryland.   It was there, after all, that John Marshall, even if granting enormous power to Congress under the “necessary and proper” clause, for whatever reason took pains to remind his audience that “[t]his Government is acknowledged by all to be one of enumerated powers…[;] that principle is now universally admitted.”  To be sure, he immediately went on to acknowledge that “the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.” But, for better or, quite definitely, for worse, his “universally admitted” principle has endured as a linchpin of what we call “constitutional interpretation.” 

Primus is here to remind us, however, that Marshall could often be an intellectual bully, claiming “universal” recognition of some principle that was in fact highly (and legitimately) disputed.  And Primus brings forth all the evidence that one should need in order to demonstrate exactly how mistaken was the “Great Chief Justice.” But, of course, Marshall earned his title, whatever we might think of it, precisely because so many of his utterances, however sometimes orphic, have served as performatives to establish the very framework of our legal conversations.  It is one thing to question an utterance by Morrison Waite, perhaps the most obscure of our chief justices, or by Roger Taney, whose legacy was permanently tarnished by Dred Scott and whom it is tempting to demonize as a rogue justice with nothing to tell us about the Constitution.  It is too threatening to our culture of constitutional “veneration” to acknowledge the possibility that Taney was offering a plausible interpretation of a Constitution that was, after all, a “covenant with death and an agreement with hell,” as argued by William Lloyd Garrison and the early Frederick Douglass. 

But challenging John Marshall, who is treated within the legal academy as a de facto Founding Father, is quite another matter!  It is difficult indeed to suggest that one’s father was fundamentally in error and merits our own rejection.  That is the task that Primus is engaged in.  He is swimming upstream—and inviting his readers to join him—against a mighty current of conventional wisdom founded on two centuries of Supreme Court utterances and repetition by those teaching students how to “think like constitutional lawyers” which has become synonymous with accepting the premises of enumerationism.

So, as a practical matter, just as with Zack Price’s book, the key question is not how many sales he will make among his fellow academics, but, instead, whether members of the Supreme Court will read it with requisite care and genuinely learn its lessons.  Ideally, five members of the Court would realize the error of their commitment to conventional wisdom, but one might more realistically hope that even one will embark on a sustained mission to educate his or her colleagues.  If one took seriously the claims of the current majority to be guided by “originalism,” however defined, then one might assume that at least one of them would in fact be eager to read a book published by a leading university press and authored by an eminent constitutional scholar at the peak of his powers.  But, frankly, it is quite impossible to take most of their claims seriously.  None of the justices exhibits any of the particular talents and intellectual discipline one associates with being a professional historian or even a gifted amateur.  John Roberts might have majored in history at Harvard before graduating in 1976, but there is no evidence whatsoever that he has any deep understanding or abiding interest in American history.  And he is not alone.  Amy Barrett majored in English literature and minored in French at Rhodes College.  One might applaud these as intellectual interests, but they are scarcely pathways to deep historical knowledge of the American past.  Nor, incidentally, do the justices seem interested in hiring clerks with disciplined training in American history. 

Mark Tushnet once referred to the phenomenon of “lawyers as astrophysicists.” He did not mean to be offering a compliment.  Rather, he was adverting to the belief by smart, and overly confident, lawyers that they could master anything in a long weekend.  Actual professional training was irrelevant, even if lawyers themselves were often quick to attack any pronouncements on “the law” offered by the laity.  So it is with the Court and American history.  They read what they want to read and, more the point, like many mere mortals, mine what they read in order to bolster their own priors.  How often do any of us—and I use the pronoun advisedly—actually “change our minds” with regard to some fundamental beliefs simply by virtue of reading a book and being convinced by the sheer force of argument that we were wrong and must mend our intellectual ways? 

Primus certainly changed my mind, but it would be inaccurate to say that I was truly deeply invested in the “enumerationist” narrative of American constitutionalism.  I usually taught it as indeed conventional wisdom; I chided my colleague Calvin Johnson, who disdained any reliance on “enumerated powers,” as insufficiently nuanced.  I would go on, as a political scientist/lawyer, to note how little “enumerationism” really contributed to our understanding of contemporary constitutional law, especially since the New Deal.  But that was not intended to disconfirm the historical importance of how the Constitution had been imagined by an earlier generation.  Primus forces the diligent reader to revise this account of the historical imagination. 

But what if I were a Supreme Court justice, even a liberal one?  Would I emulate Louis Brandeis and overthrow not only 100 years of error, but, in fact, at least two centuries of misunderstanding reflected in a myriad of Supreme Court decisions and the teachings of the legal academy?  After all, no one, least of all anyone advocating in behalf of a liberal reading of the Constitution, has been willing to affirm that the Constitution, correctly understood, does basically establish plenary power for Congress save for explicit prohibitions.  Consider the fact that there was widespread agreement that first Drew Days and then Donald Vereilli “lost their arguments” before the Supreme Court in the Lopez case in 1995 and then Sibelius in 2012 by being unable to offer an answer to the question “is there anything that Congress can’t do under your theory of the Commerce Power?”  Thus the importance of the infamous “broccoli” hypothetical in the latter case.  Neither lawyer, including Days, a distinguished member of the Yale Law School faculty, was willing to say, in effect, “yes, Justice X, you’re right, Congress does have plenary power under Article I, save for the specific limitations set out.  Otherwise, John Hart Ely was right.  We are ultimately reliant on the good sense of the American people not to require the eating of broccoli rather than on strained interpretations by judges of the meaning of commerce.”  And the dissenters in those two cases, clearly frustrated with the majority’s cramped view of the Commerce Power, were unwilling to dismiss “enumerationism.”  Will anything change now that Primus has in fact given them—and all of us—more than enough intellectual ammunition to bury the doctrine? 

            The answer will tell us much about how intellectual revolutions do (or do not) occur.  Perhaps someone writing in 2050 will look back on Primus’s work as the foundation of a “long, melancholy roar” by which the assumptions of an earlier generation were upended and ultimately replaced.  Jonathan Gienapp’s wonderful book Against Constitutional Originalism:  A Historical Critique might also receive similar acknowledgement as a truly transformational work. But will changes in academic consciousness necessarily be reflected in the pages of the United States Reports?  That will take many new appointments of justices themselves educated to question the assumptions that are now taken for granted.  When Trumpistas call for greater intellectual “diversity” within the legal academy, are they thinking of someone like Primus?  Or, instead, do they insist only that “originalists” who in fact know relatively little about history be appointed to the judiciary and continue to take aim at the “New Deal Settlement” or the Civil Rights Revolution because of altogether dubious accounts of a singular “original public meaning” ostensibly present in 1787? 

            There is no doubt that Richard Primus has written a book for the ages at least within the circle of scholars of the United States Constitution.  It is, in its own way, comparable to some of the books written after World War II that exploded the hold that the Dunning School had on the presentation of Reconstruction and, therefore, the history of the Reconstruction Amendments.  As Steve Griffin wrote in a recent review of books by Balkin, Gienapp, and Mark Graber, “one of the lessons of Reconstruction-era scholarship is that one of the most important tasks historians can perform is ‘myth-busting’—challenging what we think we know, generating new insights by excavating long-buried assumptions of entire bodies of constitutional doctrine and bringing into question common assumptions that undergird the legal profession’s everyday work.”  Primus’s book certainly qualifies as a “myth-busing” effort to challenge deeply embedded assumptions. 

But it remains to be seen whether the most institutionally important potential audience for his book will bother to read it and, more to the point, acknowledge the extent to which it requires a genuine transformation—and intellectual revolution—in the way we conceive of the Constitution.  John Marshall was correct when he reminded us of the importance that “it is a constitution we are expounding.”  For far too long we have expounded it within the framework of “enumerationism.”  Even if we might expect, perhaps naively, that academics would be able to liberate themselves from a very powerful intellectual status quo built up over generations, can we expect the same of members of the Supreme Court, even those who might themselves have spent time as legal academics?