The Limits of Enumeration

67 Pages Posted: 8 Apr 2014 Last revised: 3 Apr 2015

Richard Primus

University of Michigan Law School

Date Written: October 28, 2014

Abstract

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.

Keywords: Constitutional Law, Constitutional Interpretation, Federalism, Powers of Congress

Suggested Citation

Primus, Richard, The Limits of Enumeration (October 28, 2014). 124 Yale Law Journal 576 (2014); U of Michigan Public Law Research Paper No. 403. Available at SSRN: https://ssrn.com/abstract=2416259

Richard Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-5543 (Phone)
734-764-8309 (Fax)

Paper statistics

Downloads
331
Rank
72,838
Abstract Views
2,369