The Limits of Enumeration

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

See all articles by Richard Primus

Richard Primus

University of Michigan Law School

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

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:

Richard Primus (Contact Author)

University of Michigan Law School ( email )

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