Nearly every semester I teach relatively new law students constitutional law. Early on, the students and I tackle Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland.1 See generally McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). You might remember the opinion, the one where Marshall uses the Commerce Clause, and more importantly the Necessary and Proper Clause, to uphold Congress’ creation of the Second Bank of the United States. I always point out to students Marshall’s famous sentences: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted.”2Id. at 405.
Richard Primus, in his well-researched and truly intriguing book, The Oldest Constitutional Question: Enumeration and Federal Power, acknowledges that this passage is “customarily used to support to enumeration principle in modern constitutional law.”3 Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power 214 (2025). Chief Justices Roberts and Rehnquist would agree.4See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 534 (2012); United States v. Lopez, 514 U.S. 549, 566 (1995). The majority of the Supreme Court, at least since 1995, believes that Congress can only legislate in the areas explicitly set forth in the Constitution, e.g., interstate commerce, spending, bankruptcy, establishing post offices, dealing with Native American tribes, coining money, war powers, and legislating under the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. This is, according to Primus, “enumerationism,” and it is a problem. As the author notes, this way of thinking almost knocked out the Affordable Care Act. Indeed, Primus borrowing and transforming Justice Robert Jackson’s famous Korematsu dissent phrase, asserts that the strict enumeration position held by the current Supreme Court majority lies about like a “loaded weapon” ready to strike down the next piece of ambitious social legislation.5Primus, supra note 4, at 28–30. The stakes are high.
But back to class. As all but the dullest student realize, the power to create a bank is not set forth in the enumerated powers. But, as Marshall famously reasoned, “let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate . . . are Constitutional.”6 McCulloch, 17 U.S. at 421. Thus, the Necessary and Proper Clause combined with the Commerce Clause and permitted the creation of the Bank. With the addition of the Necessary and Proper Clause, the enumerated powers are broad indeed.
At this point, a few students might raise their hands and ask about states’ rights and the Tenth Amendment. I am prepared. I note what Marshall says of the Tenth Amendment: it “was framed for the purpose of quieting the excessive jealousies which had been excited” and it “omits the word ‘expressly’ and declares only that the powers ‘not delegated to the United States’” and reserved to the States and the people.7Id. at 406. Thus, the Tenth Amendment says little and does not provide some sort of sovereignty to the states. If class time permits, I mention that Marshall’s expansive view of federal powers went into a partial eclipse during Taney and Lochner-era years and then came roaring back after the Revolution of 1937 only to be challenged, with enumerated powers reasoning, in such relatively recent cases as United States v. Lopez. I conclude the class feeling quite proud of myself.
Richard Primus, given his reasoning based on historical analysis, past decisions, and penetrating textual analysis, would burst my bubble and term me a traditional “enumerationist.” Primus takes the intriguing position that at least a good number of the Founders wanted an energetic central government to combat the anemic Articles of Confederation and gave a broad, opened-ended legislative power to congress to confront national problems. The book notes that we often interpret the Constitution with a lens predisposed to think that the enumerated powers of Ariticle I are the exclusive powers of Congress. Primus argues:
But imagine a different set of premises. Suppose that the drafters of the Constitution worried less about a too-powerful Congress than about an insufficiently powerful one . . . Suppose that at least some of the Framers intended the list to be nonexclusive and that the public understood that it could be read that way. Suppose that the Supreme Court prior to the New Deal often validated congressional action on the basis of powers not enumerated in the Constitution’s text but deemed inherent in national sovereignty.8Id. at 338–39.
The author then establishes each of these suppositions through the historical record and case law. In this age where scholars and judges are tied to the words of the Constitution, this is a novel and intriguing approach. Primus concludes that Congress is not limited to the powers enumerated in the Constitution but has implied powers beyond those specified “to confront national problems” when they arise. Although there might be some local/state-only issue, this approach gives Congress expansive power to legislate in most any area.
As support, Primus cites numerous lesser-known decisions (mostly from 1871 to 1934) which affirmed Congress’ legislation not from an “expressly specified” enumerated power, but from an implicit power “which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted.”9Knox v. Lee, 79 U.S. (12 Wall.) 457, 535 (1871) (affirming Congress’ ability to issue paper currency);see also id. at 221–32. Many of these “implicit or implied power” decisions are from the Lochner era when the Supreme Court felt empowered to imply powers to the Constitution, provide “fundamental rights” not specified in the Constitution (the right to travel, to raise and educate one’s own children, etc.), and, most infamously, imply a “liberty of contract” to the Fourteenth Amendment. Perhaps it is the traditional lens I use, but I often look askance at Supreme Court decisions from this period.
Primus also claims support from cases that eschew implied powers but represent what he deems “Cumulative Coverage.” The author devotes an entire chapter (replete with charts and graphs) to the concept of “cumulative coverage” and “internal limits” and most cases are dated beyond 1937. I read and re-read confusing portions of this chapter and finally concluded that the cases discussed are better considered as examples of enumerated powers (interpreted either broadly or narrowly) with an occasional push from the Necessary and Proper Clause. The author’s thesis is best supported by the “implied powers” cases and history.
But after reading The Oldest Constitutional Question, I was left with a nagging thought: even advocating the broad Marshall/Wickard v. Filburn (the 1942 decision expanding the Commerce Clause to a small wheat field used only for home consumption) approach, I may be interpreting and teaching the Constitution in a manner equivalent to a Model T Ford or, at best, a 1968 Chevy Impala. Primus meanwhile is cutting up the street in a powerful Maserati sports car.
There is no doubt that Primus is a big, outside-the-box thinker. He argues that our current thinking that Congress is limited to the powers enumerated in Article I is not in accord with reality. As the author notes, federal legislation regulates the air we breathe, the water we drink, the cars we drive, and the food we eat.10Primus, supra note 4, at 6. So much for Henry Hart and Herbert Wechsler’s famous observation about the “interstitial nature of federal law.”11William Baude et al., Hart and Wechsler’s Federal Courts and the Federal System, 488 (7th ed. 2022) (quoting Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 504 (1954)). From this federal-power-heavy reality, Primus argues that “Congress can pursue pretty much any regulatory project for which it can summon the political will, subject of course to the Constitution’s affirmative prohibitions.”12Primus, supra note 4, at 21. Still, Congress could not, for example, violate the First Amendment by discriminating against Muslims or violate the search and seizure prohibitions of the Fourth Amendment or the cruel and unusual punishment provisions of the Eighth Amendment.
To illustrate Primus’ approach versus an expansive but traditional “enumerationist” such as myself, take these two hypotheticals based on current issues. Suppose a Democratic-dominated Congress passes a law that every woman within the United States who is within the first two trimesters of pregnancy has a right to an abortion. Or suppose that a Republican-dominated Congress passes a law stating that abortion is prohibited in all fifty states, except if required to save the life of the mother. Either of these two alternatives, in our contentious age, would face a constitutional challenge.
Using the traditional approach of finding an enumerated power to justify the Congressional legislation, one might seize upon the Commerce Clause together with the Necessary and Proper Clause. After all, traveling to obtain an abortion in another State might well involve interstate commerce and the health care system overall constitutes an interstate business. Or one might point to Section 5 of the Fourteenth Amendment to support the due process right of women to obtain an abortion (or the right of the unborn to live in the alternative hypothetical). Of course, using the Fourteenth Amendment approach would involve the Court’s use of its subjective “proportional and congruence” test and that test poses problems for either hypothetical.
The approach advocated by Primus is much cleaner. Because he believes that the enumerated powers are only the floor to Congressional power, he would not have to bother with the Commerce Clause or the Fourteenth Amendment. Abortion, he would argue, is a national concern and, thus, Congress has the power to pass either hypothetical law.
But we are not done with the hypotheticals. A state might argue that the federal legislation infringes on its “sovereignty” and, thus, the Tenth Amendment would likely raise its head. The Tenth Amendment analysis shows a weakness in Primus’ approach. My view of the Tenth Amendment is somewhat like John Marshall’s (and very contrary to the current Supreme Court’s thinking): The Tenth Amendment says really nothing and is simply included as a sop to the opponents of both the Constitution and the Bill of Rights. The same could be said of the Ninth Amendment, which is an equal non-entity and was included to pacify the natural rights contingent. After all, constitutional drafting is the work of many. It is not always a pretty process.
Primus, a believer in implied powers that lie beyond the text of the Constitution, believes that the Tenth Amendment actually means something.13Primus, supra note 4, at 351–52. He acknowledges that the state sovereignty found in Alden v. Maine (the reasoning of which, in my view of the Constitution and federalism, is particularly appalling) or the anticommandeering rule first announced in New York v. United States and then reconfigured in Murphy v. NCAA might be justified by reading implied powers into the Tenth Amendment. Thus, the Tenth Amendment, under the Primus view, might legitimately strike down either hypothetical law. This may be a problem in interpreting substantial implied powers beyond the constitutional text.
Primus would be quick to point out that the current Supreme Court would not accept his approach that the enumerated powers are simply the floor of congressional power. But the purpose of this book is not to persuade the current Court. Instead, the author wants to expand the reader’s interpretation of the Constitution. He points out repeatedly that the traditional interpretation of Congress’ powers is not compelled by either history or the constitutional text. As Primus says at the end of the book, “maybe I can persuade you that enumerationism is just one way of looking at the Constitution, rather than the only correct way. That would be an excellent start.”14Primus, supra note 4, at 369. At least to those less hidebound than me, maybe he can. So, read the book, keep an open mind, and you will be introduced to another way of interpreting the Constitution.
