The Original Meaning of Enumerated Powers

70 Pages Posted: 18 Jan 2023

See all articles by Andrew Coan

Andrew Coan

University of Arizona, James E. Rogers College of Law

David S. Schwartz

University of Wisconsin Law School

Date Written: January 17, 2023

Abstract

The powers of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of “enumerationism” is the linchpin of a multi-decade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger—or broader—consensus on an important question of original meaning.

This Article challenges that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and undertheorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions—the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not.

If these arguments are correct, enumerationism falls into the “construction zone,” where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally followed suit, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation.

Keywords: Enumeration, Originalism, Federalism, Original Public Meaning, Interpretation, Construction, Contextual Enrichment

Suggested Citation

Coan, Andrew and Schwartz, David S., The Original Meaning of Enumerated Powers (January 17, 2023). Arizona Legal Studies Discussion Paper No. 23-02, Univ. of Wisconsin Legal Studies Research Paper #1763, Available at SSRN: https://ssrn.com/abstract=4327619 or http://dx.doi.org/10.2139/ssrn.4327619

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

David S. Schwartz

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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