67 Pages Posted: 8 Apr 2014 Last revised: 3 Apr 2015
Date Written: October 28, 2014
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: 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