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Andrew Coan & David Schwartz: The Original Meaning of Enumerated Powers [Updated]
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) & David S. Schwartz (University of Wisconsin Law School) have posted The Original Meaning of Enumerated Powers (70 pages) on SSRN.  Here is the 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.

The authors presented this paper at the 2023 Originalism Works-in-Progress conference in San Diego last weekend (with commentary by Randy Barnett).

The paper did not convince me of its conclusions, but it did convince me of the need for a comprehensive originalist defense of enumeration (to be written by someone other than me, though I might have a few preliminary thoughts in a separate post).

UPDATE:  I'm reminded that Kurt Lash had this excellent essay a while ago, responding to an earlier critique of enumerated powers by Richard Primus: The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration (124 Yale L.J. F. 180 (2014)).