Reframing Article I, Section 8

Abstract

Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way in which enumerating congressional powers would have made sense as a means of limitation--lies with the Framers' concern that Congress would not have the capacity to provide the governance that the far-flung nation would require, coupled with their intuition that legislative domains had to belong either to Congress or the state legislatures rather than both simultaneously. Within that conception, enumerating specific congressional powers would have been a way to avoid preempting large swaths of necessary local regulation. But given modern constitutional law's comfort with concurrent legislative jurisdiction, that concern no longer provides a reason for treating the enumeration of congressional powers as a device for limiting the national government.
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Keywords: constitutional law, federalism