The limits of enumeration.

• Author: Primus, Richard
• Position: III. History through Conclusion, with footnotes, p. 613-642

3. HISTORY

   Constitutional history is much broader than the history of the Founding period, and normative constitutional practice often appears different when viewed through the lens of one period in history rather than another. One way to understand the argument against the internal-limits canon is as an argument that takes the most recent century of constitutional law as a source of authoritative practices. (138) That said, it is a fact about American constitutional thought that the Founding period occupies a privileged position among historical eras. And it is in the Founding that the historical argument in favor of the internal-limits canon is firmly grounded. According to that argument, internal limits were a critical part of the Founding design, and fidelity to that design requires the continued operation of internal limits as meaningful constraints on Congress.

   There is no serious doubt that most of the Founders expected internal limits on congressional powers to constrain the federal government. (139) But conventional wisdom about internal limits in the Founding design makes at least two important errors. The first, addressed in Part III.A, concerns the importance of internal limits relative to other kinds of limits in constraining the federal government. Following an argument famously advanced by Hamilton and others at the time of ratification, many leading figures have noted that the original Constitution contained an enumeration of congressional powers but no Bill of Rights and reasoned that the Founding generation saw the enumeration as the most important mechanism for limiting federal power. (140) This line of thinking is a mistake. The Hamiltonian argument was not the well-considered theory of the Founding generation. It was a talking point that most of that generation dismissed as implausible.

   Second, the conventional approach implicitly treats the enumeration of congressional powers as a matter of independent principle, rather than as a strategic choice intended to preserve local decision making and individual rights. The better reading is that the Founders saw enumeration as a means to those ends, not as somehow valuable in itself. And as I explain below, fidelity to choices about means sometimes differs from fidelity to choices about ends. If the idea of a government limited by its enumerated powers had been a matter of independent value to the Founders--that is, if the Founders would have insisted on internal limits as a mechanism for constraining federal power even with the knowledge that other kinds of limits would be equally effective, or more so, at preserving local decision making and protecting individual rights-then the internal-limits canon might be part of what fidelity to their design required. But on the understanding that the choice to enumerate Congress's powers is better seen as a means to those ends, modern decision makers can be faithful to the Founding design even if Congress is not in practice meaningfully constrained by internal limits--provided, of course, that Congress exercises only the powers delegated to it, and provided also that local decision making and individual rights are protected by other means within the constitutional design. This second point is the focus of Part III.B.

   1. How Important Were Internal Limits to the Founders?

      Within American constitutional culture, a canonical story teaches that the Founders considered internal limits more important than external ones. According to that story, the delegates at the Constitutional Convention believed that the enumeration of congressional powers would limit the federal government. Indeed, the story continues, the Founders were so confident in the mechanism of enumeration that they considered a Bill of Rights unnecessary, or even counterproductive, because specifying affirmative prohibitions might mislead people into thinking that Congress was not confined to its enumerated powers. (141) More than one important figure at the Founding articulated this idea about the enumeration and a Bill of Rights: Madison and James Wilson, for example, both prominently advanced the claim. (142) But for modern audiences the idea is most closely associated with Hamilton, whose exposition of the argument in Federalist 84 is perhaps its most canonical expression. (143)

      Given the enormously important status that modern Americans afford to the Bill of Rights, the normal role of this story is to make the enumeration and its internal limits seem essential. After all, the reasoning runs, the drafters of the Constitution considered the system of internal limits even more important than express guarantees of free speech, free religious exercise, and so forth. In NFIB, both Chief Justice Roberts and the joint dissent invoked this canonical story as a way of malting the point, on the authority of the Founders, that internal limits must play a central role in the constitutional design. (144) But the canonical status of this story notwithstanding, it is a mistake to think that fidelity to the Founding design requires operative internal limits. To begin to see why, it may help to think critically about the canonical story. Two points are particularly worth noting.

      First, the Convention's omission of a Bill of Rights does not demonstrate that the delegates regarded enumeration as the chief mechanism for constraining Congress. (145) To most of the delegates, the most important mechanisms for constraining Congress were neither external limits nor internal limits but process limits. The arrangements to which the Convention paid attention at length and in detail concerned the composition of and relationships among decision-making institutions: popularly elected House and state-appointed Senate, single-member executive chosen with a state-based mechanism, and so forth. (146) The prevailing wisdom held that elections and state governments would keep federal power in check, and if that didn't work, then the states would use their resources--political, financial, persuasive, even perhaps military-to rally public resistance against central authority. (147) Some of these expectations turned out to be chimerical. (148) Others were vindicated, albeit to varying degrees and unevenly over time. (149) But regardless of how one judges the successes and failures of the attempt to check federal power by process mechanisms, it remains the case that the Convention invested most heavily in this strategy. By comparison, the attention paid to enumeration and internal limits was slight. Prior to the appointment of the Committee of Detail, there was no deep engagement with questions about whether this or that power should be included among the powers of Congress, and the draft enumeration that the Committee presented on August 6 was largely accepted by the full Convention, albeit with emendations. (150) To be sure, none of this demonstrates that the Convention regarded the enumeration as unimportant. Given the incomplete nature of the historical evidence, the delegates may have paid more attention to the enumeration than the surviving records reflect. But the available record strongly suggests that the delegates' greatest focus was on other mechanisms--principally process mechanisms--for limiting federal legislation.

      Second, no matter what the Convention delegates may have thought, the broader public decisively rejected the idea that the enumeration would limit Congress well enough to make a Bill of Rights unnecessary. Yes, people like Hamilton, Madison, and Wilson defended their work with that argument. (151) But they utterly failed to persuade the public. Some contemporaries dismissed the claim that enumeration would suffice as just a rationalizing afterthought--an idea grasped at to parry Bill of Rights objections to the Constitution, rather than an authentic and central piece of the Convention's plan. (152) Jefferson told Madison directly that he considered the idea a ruse, one that might bamboozle a credulous audience but which on its merits should not be taken seriously. (153) After all, it was not obscure even in 1788 that the powers to tax, to regulate commerce, to raise armies, and so forth could be deployed oppressively unless affirmatively limited. (154) So the cry for a Bill of Rights continued unabated. (155) The inadequacy of the draft Constitution's limits on federal power was a common and insistently pressed criticism during the ratification debates, (156) and the creation of vigorous external limits was one of the first orders of business once the new system was up and running. Acting pragmatically, many delegates to the state ratifying conventions chose to ratify the Constitution and fix the problem immediately afterwards rather than insisting that the whole arduous process be repeated from its beginning. But any idea that the Founding generation trusted Hamilton's famous argument about internal limits is belied by the first great fact about constitutional reform in the new Republic: the quick passage and ratification of the first ten Amendments. In short, the most important feature of the Founding generation's relationship to the idea that the enumeration would be sufficient for limiting Congress is this one: they didn't buy it.

      One could take the view that the Constitution's defenders during the ratification debates were correct when they said that internal limits would do the work, regardless of how they came to that view and even though they were unable to persuade their contemporaries. The idea might then be worth taking seriously despite its rejection in its own time. But if so, the reason for thinking this conception worthy of our respect is not the legal authority of the Founding. (157) 157 It is the first-order merits of the idea. And to conclude that the idea was a good one, we would have to believe that the system of internal limits actually would have sufficed for protecting individual rights and maintaining the substantive...