Book Review: The Oldest Constitutional Question: Enumeration and Federal Power,by Richard Primus

U.S. constitutional lawyers tend to think that the central project of the Constitution is to constrain Congress. Richard Primus’s concern in The Oldest Constitutional Question, therefore, matters a great deal: How does constitutional law constrain Congress? The central contribution of Primus’s book is to show that the enumeration of powers is not the answer. In advancing this argument, Primus synthesizes and builds on arguments he has developed in an impressive series of articles stretching back over a decade.

Primus’s project is to criticize a prevalent way of thinking about how the Constitution limits Congress’s powers. The Constitution expressly confers some powers on Congress—for example, the power to levy taxes (art. I, § 8, cl. 1) or the power to regulate congressional elections (art. I, § 4, cl. 1). These are Congress’s “enumerated powers.” Enumerationism—Primus’s target—is the argument that Congress only possesses those enumerated powers and that enumeration therefore supplies a limit on what Congress can do. In the course of scrutinizing the evidence for enumerationism, Primus also explores various theories about the sources of unenumerated congressional powers, including powers implied from the expressly enumerated powers and powers inherent in a national government.

In making this argument, the book offers a more coherent theoretical rationale for what courts have already largely been doing in practice. Historically, enumeration has rarely supplied a meaningful constraint on congressional power, with the exception of a few decades in the early twentieth century (240). Primus also makes the incisive observation that whether there are meaningful limits on the scope of Congress’s powers is orthogonal to the question of whether congressional power is limited to the enumerated powers (illustrated by a helpful table on page 267). For instance, Congress’s power to regulate interstate commerce can be—and often has been—understood sufficiently capaciously to enable Congress to impose whatever rules it wants, subject to specific prohibitions on what Congress can regulate (such as the First Amendment).

At a higher level, the book is about how constitutional law works. Constitutional constraints on Congress (or any legislature) fall into three buckets: definition of powers, restrictions on power (either rights or specific prohibitions), and structural rules. Primus refers to these categories respectively as “internal limits,” “external limits,” and “process limits” (38). If the definition of powers does not supply a substantial constraint on Congress, the ultimate takeaway is that we must look elsewhere to appreciate how the Constitution actually constrains Congress: “[t]hat work is done elsewhere, by structural devices . . . and by affirmative prohibitions” (16). Indeed, instead of the enumeration of powers in Article I, Section 8, the powerful constraint on Congress is supplied by the structural provisions of Article I, Section 7: a legislative process that, at least typically, requires that congressional action achieve bicameral approval and survive the president’s veto in order to have legal effect.

As lawyers are wont to do, Primus offers primarily interpretive arguments against enumerationism. These arguments involve reading the constitutional text fairly and parsimoniously, typically through the lens of original understanding, while refusing to add text that does not appear in the Constitution. As a matter of the use of language, enumeration of some powers does not necessarily imply the exclusion of others (337–38). Moreover, various individuals involved in the Constitution’s drafting did not understand enumeration to imply the denial to Congress of non-enumerated powers (105). The point of enumeration was to rule in powers rather than rule them out—to dispel doubt about what congressional power necessarily included rather than to imply the exclusion of unenumerated powers (55). Primus suggests that a primary purpose of enumerating congressional powers in Article I, Section 8, was to dispel the idea that the president was entitled to exercise those powers (57). Moreover, Article I, Section 8, is not an exhaustive catalogue of congressional powers, undermining a structural argument for enumerationism.

In fact, the Necessary and Proper Clause, which concludes Article I, Section 8, was likely intended in part to acknowledge congressional powers beyond those specifically enumerated (103). The Clause refers, inter alia, to Congress’s power to make laws “necessary and proper for carrying into execution . . . all other powers vested by this Constitution in the government of the United States.” As Primus points out, the Constitution does not expressly confer any powers upon the government of the United States, suggesting that the language of the Clause refers instead to unenumerated powers (104). Indeed, present readers likely underestimate how much founding-era constitutional thought generally recognized extratextual sources of constitutional meaning (346). ¹ Nor, Primus shows, does the Article I Vesting Clause supply a warrant for enumerationism. Contemporary readers often take its language to limit congressional power to “[a]ll legislative powers herein granted.” But the word “all” does not mean “only,” and we only assume that it does because we expect the Constitution to have that meaning (326).

The Constitution’s text is at least not clearly committed to enumerationism, and Framers disagreed on the question. Primus persuasively observes that the most prominent of the Framers’ arguments for enumerationism were ex post rationalizations, supplied in order to discourage the adoption of a bill of rights, and thus providing a revisionist account of what the Convention had done (129). There was similar disagreement among legislators in the First Congress, which was “the most salient locus of constitutional interpretation” in the early republic (208). In short, Primus amply reveals the textual, structural, and historical overclaiming of the proponents of enumerationism.

Primus also devotes considerable attention to careful reading of precedents. He corrects a prominent misreading of McCulloch v. Maryland (1819), showing that it did not embrace enumerationism (216), and he presents several Supreme Court cases recognizing unenumerated powers (231–32). Particularly important is his observation that the purpose of limiting enumerated congressional powers in early cases was to preserve authority for state governments, because there was a presumption that enumerating a federal power denied that power to the states (250). Unenumerated congressional powers did not have the same preclusive effect.

Where textual and structural—that is to say, formalist—constitutional arguments are indeterminate, something else must be doing the key interpretive work. Primus’s normative arguments against enumerationism, while not foregrounded, are some of the book’s cleverest. There is no reason to fear an absence of internal limits on congressional power, Primus argues. As he observes, “The social world is not organized into mutually exclusive regulatory domains, each of which can be reached only with a specific power to regulate that domain” (340). Enumeration is not an effective way of constraining congressional power—and if constitutional designers want to constrain a legislature, they have more effective tools at their disposal (320–21).

The book succeeds spectacularly in what it sets out to do. Primus makes an utterly persuasive argument against enumerationism. The book’s arguments are careful, rigorous, and elegant. Primus never overclaims and frequently acknowledges uncertainty—even to a fault. The book is truly a model of constitutional argument. At the same time, it is worth being clear-eyed about the limits of the book’s project. As Primus observes, we have already circumvented enumerationism in practice, paying lip service to the principle while vitiating its import. To be sure, the Roberts Court has flirted with reinvigorating enumerationism as a constraint on congressional power, and Primus suggests that enumerationism “lies about like a loaded weapon” (29). Still, Primus suggests that such constraints are likely to be ineffective (280–81). At the same time, judges have found other, more destructive tools to hamstring Congress. Moreover, although lawyers tend to focus on courts, Congress’s difficulties owe more to structural fundamentals.

Precisely because of the book’s conclusions, its argument cannot purport to solve Congress’s woes. Primus has written a book about how the Constitution does not constrain Congress, but constitutional law nevertheless imposes very substantial constraints on Congress in other ways. Primus’s refutation of enumerationism should prompt attention to those areas. For instance, Primus recounts proslavery rationales for enumerationism, but constitutional structure, in particular the design of the Senate, also contributed significantly to inhibiting the abolition of slavery—and later to inhibiting civil rights legislation. Constitutional rights contributed too. The Dred Scott case—only the second instance in which the Supreme Court held a federal statute unconstitutional—turned not on Congress’s powers but on a theory of the property rights protected by the Due Process Clause. The relative importance of other areas is by no means a shortcoming of the book; indeed, Primus has helped us to see how constitutional law really matters.

There is one way, however, in which the framing of Primus’s argument may go astray, and that is that it may neglect deeper determinants of the congressional weakness that the book seeks to resist. The same ideological tendency that has led us to misunderstand powers might also be leading us to misunderstand rights and structure. Enumerationism rests on a background assumption that the task of a constitution is to restrain the legislature. The same anti-Congress impulse that drives enumerationism might pervade other domains of constitutional law. By the same token, just as the point of enumeration may be to empower Congress, so the point of constitutional law more broadly may be to empower Congress. Primus makes a powerful rhetorical move in saying that proponents of enumerationism are trying to convert the primary source of congressional strength into a source of weakness (16). That intervention could be applied more broadly.

Courts may well cause more mischief for Congress through rights than through powers. Primus warns that “pressing the enumeration of powers into service as a tool of limitation is likely to invite or provoke judges to choose which federal laws to invalidate largely on the basis of those judges’ attitudes about public policy” (28). Whether something falls within Congress’s enumerated powers is certainly malleable (e.g., famously, whether the Affordable Care Act’s individual mandate was a tax). But rights are often more manipulable than powers (e.g., the new commercial speech doctrine leveraging the First Amendment for deregulatory purposes). Whereas textual vagueness tends to operate in favor of Congress when it comes to the definition of powers, by the same token, it operates against Congress in the definition of rights. Vaguely-defined rights give judges discretion about which congressional policy choices to strike down. At the same time, political science has shown judicial review to contribute little if anything, in the aggregate, to rights protection. ²

Constitutional design works most mischief of all through structure. The Constitution contains an array of pernicious structural features, many of which are unusual among democracies: strong bicameralism, a presidential veto, and a severely malapportioned Senate, just to name a few. Like the definition of powers, structural checks and balances are wholesale restrictions on Congress’s ability to legislate—indeed, far more so. Primus is far too sanguine about the Madisonian system. In some instances, he may just be reporting the views of the Framers (e.g., 17, 152). After all, process limits need not be understood in countermajoritarian terms (281). As Madison himself recognized in Federalist 51, majoritarian democracy is the preeminent instrument constraining Congress. But in reiterating the Framers’ views about the value of additional procedural checks on Congress, Primus implicitly affirms them (76).

A book like this is important because how we think about our constitutional tradition matters. Law is ultimately nothing more than convention. Legal theories may do ideological work, affecting congressional agenda-setting and the willingness of courts to subvert federal legislation. Primus is concerned that the prevailing “story teaches Americans to think of the Founding of their republic as an exercise in skepticism about government, rather than as mostly a victory for confidence in the possibility of empowering government to serve the common good” (29). ³ Perhaps the enumerationist theory is linked to the “idea that federal legislation is supposed to be exceptional or disfavored” (204), such that rejecting enumerationism may contribute to more enthusiasm for federal legislative action. That is an admirable project. The hitch is that enumerationism is the least of Congress’s problems. That limitation underscores the need to connect Primus’s redescribing impulse to a broader reevaluation of our constitutional design.