The Gibbons Fallacy

51 Pages Posted: 17 Feb 2016 Last revised: 23 Jul 2016

See all articles by Richard Primus

Richard Primus

University of Michigan Law School

Date Written: February 15, 2016


In Gibbons v. Ogden, Chief Justice John Marshall famously wrote that “the enumeration presupposes something not enumerated.” Modern courts use that phrase to mean that the Constitution’s enumeration of congressional powers indicates that those powers are, as a whole, less than a grant of general legislative authority. But Marshall wasn’t saying that. He wasn’t talking about the Constitution’s overall enumeration of congressional powers at all, and nothing in his analysis purported to limit what Congress can do. Modern courts and commentators systematically misread Marshall on this point and in so doing lend unjustified credence to one of the central misconceptions of constitutional doctrine: that the enumerated powers of Congress must in practice authorize less legislation than a grant of general legislative authority would. Properly understood, Marshall’s statement about enumeration does not support that idea.

Keywords: Constitutional Law, Constitutional Interpretation, Federalism

Suggested Citation

Primus, Richard, The Gibbons Fallacy (February 15, 2016). University of Pennsylvania Journal of Constitutional Law, 2017, Forthcoming; U of Michigan Public Law Research Paper No. 496. Available at SSRN: or

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)

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