Why Enumeration Matters

Richard Primus*

The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is a source of legislative authority, but there is no practical sense in which legislation depends on her. Similarly, it might misunderstand the American system to think that Congress is in practice—or ought, in practice, to be—limited by its enumerated powers (as opposed to the political process or affirmative constitutional prohibitions), even though we continue to repeat the traditional statement. One important difference between the two cases, however, is that in the British system there is no controversy about whether the Queen should enjoy legislative power. In the American system, where there is serious disagreement about whether the enumerated powers of Congress must be limiting, it is necessary to bring the ritual-continuity aspect of the maxim more clearly into view, thus explaining why we could be attached to the maxim even if it need not do important practical work in the operations of governance.

* Theodore J. St. Antoine Collegiate Professor of Law, The University of Michigan Law School. Thanks to Scott Bloomberg, Evan Caminker, Daniel Crane, Jennifer Fischell, Bruce Frier, Scott Hershovitz, Don Herzog, Amy Lishinski, Claire Madill, Christopher McCrudden, Leah Mintz, Jessica Morton, Gil Seinfeld, Eli Temkin, Rachael Westmoreland, Dayna Zolle, and the participants in workshops at the University of Michigan Law School and the University of Southern California Law School. Research for this Article was funded in part by the Cook Endowment.

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