The Oldest Constitutional Question: Enumeration and Federal Power

A groundbreaking challenge to a core principle of constitutional law, arguing that congressional action is not limited by the legislative branch's textually enumerated powers. Every law student learns that the federal government is constrained to act only according to its enumerated powers, meaning that Congress can do what the Constitution expressly authorizes it to and nothing more. Yet Richard Primus contends that this longstanding orthodoxy-allegedly required by the text of the Constitution, the Framers' vision, and the logic of federalism-is fundamentally flawed. Through careful analysis of constitutional text and history, and of the structure of American federalism, The Oldest Constitutional Question builds a powerful argument for broad congressional authority. In particular, Primus shows that the primary function of enumeration is to rule listed powers in, not to rule other powers out. The Framers were more worried that the federal government might be fragile and anemic than that it would be overwhelmingly strong. Enumerating congressional powers is thus best understood as a way of ensuring that the federal legislature has an incontestable warrant to exercise the powers specified there, not as an exhaustive description of all that Congress can do. In practice, the enumeration of powers does little to limit Congress. But most constitutional lawyers-including many Supreme Court justices-think this means something has gone wrong, such that the courts must aggressively strike down federal laws exceeding Congress's enumerated powers. Primus's meticulous examination explodes the prevailing view, revealing its underlying errors. The constitutional system does place limits on Congress, and crucially so, but the enumeration of powers is not, and never has been, a sensible means for creating and enforcing those limits.

About the Author :
Richard Primus is Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. He clerked for Justice Ruth Bader Ginsburg at the US Supreme Court and is the author of The American Language of Rights.

Review :
The Oldest Constitutional Question is a brilliant, thoughtful, and devastating critique of the doctrine of enumerated powers, and a persuasive account of the contradictory constitutional arguments invented by the Framers at the dawn of the Constitution. A splendid book. Richard Primus’s stunning book 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. Richard Primus has produced a magnificent work of revisionist thinking about the nature of the federal union and the powers of the national government. Full of brilliant insights and remarkable reinterpretations, The Oldest Constitutional Question will make you think differently about how the Constitution works. The Oldest Constitutional Question brilliantly upends our official constitutional story to reframe the enumeration principle as an empowerment, rather than a limitation, of the federal government. This book is a bracingly revisionist call to recover the Founding era’s optimism about the power of government. For those who carry a copy of the Constitution in their pocket as well as those who question why we should care what the Framers thought, Primus’s book is essential reading. A tour de force of powerful research and reasoning, The Oldest Constitutional Question recasts the fundamental, perennial issue of enumerated powers in a wholly new light. Upending orthodoxy, Primus argues that the gradual expansion of the powers of the federal government represents a confirmation of the original constitutional structure rather than a deviation from it. This landmark scholarly work, written with the author’s characteristic lucidity and verve, will be required reading for anyone who cares about the past and future of the Constitution. Few doctrines are more deeply rooted in American law than the idea that the Constitution creates a system of limited and enumerated powers. Drawing on extensive learning in both law and history, Richard Primus mounts a powerful challenge to this widely held constitutional orthodoxy. A provocation of the best kind, this book is destined to cause a stir and awaken readers from their dogmatic slumbers.