The Limits of Enumeration
University of Michigan Law School
October 28, 2014
Yale Law Journal, Vol. 124, Forthcoming
U of Michigan Public Law Research Paper No. 403
According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internal-limits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. This Article explains why setting aside the internal-limits canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.
Number of Pages in PDF File: 48
Keywords: Constitutional Law, Constitutional Interpretation, Federalism, Powers of CongressAccepted Paper Series
Date posted: April 8, 2014 ; Last revised: October 29, 2014
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