Separation, Enumeration, and the Implied Bill of Rights

Abstract

The United States Constitution sets forth two strategies for distributing power within the system of government that it establishes. To distribute power horizontally within the national government, the Constitution seeks to separate power by kind – legislative, executive, and judicial. To distribute power vertically between the national and state governments, the Constitution seeks to enumerate power by subject.

Neither strategy works. Separation by kind fails because governing actions are not of single kinds. Governing in all three branches necessarily involves both lawmaking and law executing. Enumeration by subject fails because governing actions are not about single subjects. Governing actions can readily be characterized in more than one way, as about more than one subject. Consequently, those who must decide disputes about the distribution of power are obliged to create a law of institutional competence and a law of constitutional characterization with far less guidance from the Constitution than it purports to give them.

How did these two unachievable strategies come to be adopted? What should guide courts in creating a law of institutional competence and a law of constitutional characterization to settle the actual horizontal and vertical distribution of power? Examining these questions illuminates a clearer path for courts to expound the Constitution’s meaning in ways that expand its protections. Deciding the distribution of power lets courts create an implied bill of rights.

Keywords: Implied Bill of Rights, Federalism, Separation of Powers, Enumeration, Constitutional Interpretation, Characterization, Philadelphia Convention, Ratification Debates