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04/10/2014

Richard Primus: The Limits of Enumeration
Michael Ramsey

Richard Primus (University of Michigan Law School) has posted The Limits of Enumeration (Yale Law Journal, Vol. 124, Forthcoming) on SSRN.  Here is the abstract:

According to a well-known principle of constitutional interpretation here identified as the “enumeration canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the enumeration canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency, not a matter of principle: it depends on the relationship between the powers and the social world at a given time, and there is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police power would. The enumeration canon should be set aside. This Article explains why setting aside the enumeration canon is consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.