Why Enumeration Matters

Abstract:     

The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not an actionable rule of law, 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…” It would misunderstand the British system to think that the Queen is, or ought to be, in practice a source of legislative authority. 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 by the political process and affirmative constitutional prohibitions like those in the Bill of Rights) — 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 do no important practical work in the operations of governance.

Number of Pages in PDF File: 41

Keywords: constitutional law, constitutional interpretation, powers of Congress