"THE ESSENTIAL CHARACTERISTIC": ENUMERATED POWERS AND THE BANK OF THE UNITED STATES.

• Author: Primus, Richard

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison's enumerated powers argument against the Bank seems to have involved two rethinkings of Congress's enumerated powers, one about the importance of enumeration in general and one about the enumeration's specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison's enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections that sounded naturally in the register of affirmative prohibitions, but which the Constitution's text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison's move may have set a paradigm for enumerated-powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution.

TABLE OF CONTENTS INTRODUCTION I. MADISON ON ENUMERATED POWERS, 1785-1788 A. Internal and External Limits B. Against Internal Limits: The Letter to Wallace C. At the Convention D. The Constitution in Congress E. Publius and Ratification II. THE BANK DEBATE WITHOUT THE ENUMERATION QUESTION, 1790-1791 A. Hamilton's Report B. Madison's Opposition 1. Madison's Concerns 2. Madison's Preparation C. The Senate D. Other Evidence E. Summation III. IN THE HOUSE, FEBRUARY 1791 A. Madison's Enumerated-Powers Argument 1. From External Limits to Internal Limits 2. The Reading B. The Enumerated-Power Responses C. Beyond Enumerated Powers 1. The Preamble as a Grant of Powers 2. Inherent Authority Checked by External Limits 3. Collective Action 4. No Difference in Defaults D. The Shadow of Removal 1. A Legislative Precedent 2. Madison's Predicament IV. THE SEAT OF GOVERNMENT A. Desperately Fighting Susquehanna B. The Cow in the Stable C. The Bank as Anchor D. The Senate: The Length of the Charter E. Randolph's Proviso: The Ten Miles Square F. Madison Himself CONCLUSION INTRODUCTION

In American constitutional law, history matters in both official and unofficial ways. Officially, history can provide evidence of prior practice, of earlier understandings of a text, or of the problems with operating the constitutional system in a particular way. A fair amount of constitutional-interpretation literature argues about how these and other uses of history should and should not matter in official constitutional decisionmaking. But the unofficial ways in which history matters are often no less important. After all, few constitutional decisionmakers have clear theoretical views about how history should matter in constitutional law, but most are nonetheless influenced by their sense of the constitutional past. Intuitive views about why the Constitution was written and ratified, about the values of the Founders, about the nature and lessons of the Civil War, about Jim Crow and the New Deal and the Civil Rights Movement and so on, all contribute to Americans' understandings of the Constitution. As a result, successful constitutional arguments must usually be reconcilable with the audience's intuitive sense of the national constitutional story.

The idea that historical intuitions matter may require some unpacking. As the term is used here, "historical intuitions" inhabit what some social theorists call the realm of "memory" rather than that of history conceived as an academic discipline: a partly historical, partly mythical space in which complexities are smoothed out and past events given particular value-laden meanings. (1) Historical intuitions are not completely independent of facts, but neither are they strictly factual. They are a complex product of disciplinary history, societal storytelling, and political imagination. To be sure, most judges who look to historical sources for guidance in constitutional cases are probably not consciously trying to give force to the intuitions of memory. Their normal aspiration is to use history in the ways that history is officially supposed to matter. But in practice, and unofficially, the intuitions of historical memory do a fair amount of work in the enterprise of constitutional persuasion. A decisionmaker trying to make sense of a historical episode is more likely to read it to mean something he or she intuitively expects it to mean rather than anything else.

Because historical intuitions are the joint products of storytelling, imagination, and actual historical narrative, there are many different ways to shape or change a given audience's historical intuitions. Some of the most effective operate by means that would not be appropriate in academic scholarship. The works of Ken Burns (2) and Lin-Manuel Miranda (3) come to mind, not to mention those of Margaret Mitchell (4) and D.W. Griffith. (5) But professional academics also have a role to play, and a big part of that role consists of pushing back against memory's tendency toward simplification. Often, constitutional intuitions rest on overly neat pictures of the past. Bringing historical complexity into the foreground can then be a salutary corrective--one that aims to let constitutional decisionmakers think critically about propositions they have too easily taken for granted.

In that spirit, this Article is intended to challenge a set of historical intuitions that shape lawyerly thinking about a central idea in American federalism. That idea, which every law student learns, is that the federal government is limited by its enumerated powers. (6)

To be more precise, this Article is intended to put pressure on three related propositions, all of which are reinforced by a powerful set of historical intuitions. The first proposition, which we can call the enumeration principle, states that Congress can legislate only on the basis of powers enumerated--that is, affirmatively written--in the Constitution. (7) The second proposition, which we can call the internal-limits canon, (8) states that the sum total of what Congress's enumerated powers entitle it to do is less than Congress would be authorized to do if it enjoyed general legislative jurisdiction. (9) The third proposition is that the limitation of Congress to its constitutionally enumerated powers is no trivial or peripheral matter; it is a central and foundational feature of the system. (10) Or as Madison put the point in 1791, it is the government's "essential characteristic." (11)

I have argued elsewhere that at least the last two of those propositions are mistaken. (12) Depending on how one distinguishes between "enumerated" and "nonenumerated" powers, it could be true that Congress can exercise enumerated powers only. But the internal-limits canon does not follow and is not entitled to the authority it presently commands. To be sure, Congress is constitutionally prohibited from doing many things, and properly so. But neither the text of the Constitution nor the best understanding of federalism requires Congress to be limited by the enumeration of its powers, rather than by affirmative prohibitions like those in the First Amendment. And if the enumeration need not limit Congress at all, a limiting enumeration is obviously not a crucially important feature of the constitutional system. The crucially important limits on Congress are, in reality, not embodied in an enumeration of powers but built into the process of federal lawmaking or affirmatively specified in sources like the rights-protecting Amendments. (13)

My argument for that position is complex, and I will not try to summarize it here. Readers who are interested are invited to consult what I have written elsewhere. (14) For present purposes, what matters is that most well-socialized constitutional lawyers have a certain set of intuitions about the historical status of enumerated-powers ideas. According to the general understanding, the idea of a limiting enumeration has been a bedrock principle of constitutional law all the way back to the Founding. (15) That sense of historical pedigree reinforces the sense that these ideas are authoritative and any deviation from them unacceptable. (16) So to persuade constitutional lawyers to take seriously the idea that Congress need not be limited by its enumerated powers, it is helpful--indeed, essential--to challenge those historical intuitions.

The challenge I seek to mount does not deny that the enumeration principle and the internal-limits canon have long histories. They do. All the way back the Founding, there have been prominent voices arguing, insisting, or just assuming that a limiting enumeration of congressional powers is a central feature of the system. (17) But the...