For the Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).
Jonathan Gienapp
When
we interpret the U.S. Constitution, we often rely on deep-seated intuitions. We
take certain things for granted and see things through a particular lens. Among
the valuable things an interpretive tradition offers is it furnishes us with
these kinds of shared points of entry and pedagogical groundings allowing a
common conversation to flourish and endure while permitting new interpreters to
join the community. Over time, however, those shared assumptions can calcify
into rigid axioms, and interpreters can slowly lose their capacity to
critically evaluate their intuitions as intuitions. Rules of thumb are
crucial. But if essentialized, they can cloud one’s vision, making it hard to
see alternatives that might merit attention. Among the many achievements of
Richard Primus’s outstanding new book, The Oldest Constitutional Question:
Enumeration and Federal Power, is how vividly it illustrates how
constitutional intuitions tend to work. By taking one of the most enduring and
consequential assumptions that interpreters of the Constitution hold—that it
creates a government limited to its enumerated powers—and exposing and
dismantling it, Primus shows more broadly how constitutional intuitions are
rooted, entrenched, and sustained while also showing how they might be
questioned and rethought.
Primus
calls the dominant way of thinking about the Constitution’s enumerated powers
“enumerationism” to underscore that it is but one way of understanding the fact
of enumeration. The term picks out the long-dominant understanding, drilled
into each generation of constitutional interpreters, that the federal
government’s powers are limited to those enumerated and that the enumeration
itself is limiting. The reason powers are enumerated in the Constitution is, by
this thinking, to set what Primus calls internal limits on what the federal
government can do, thus ensuring that it never enjoys the kind of general
jurisdiction that the state governments claim. Primus’s main ambition is to
unsettle these interpretive intuitions—to get interpreters to see that they are
held captive by a particular way of thinking about enumerated powers that,
however credible, is hardly the only way to make sense of what the
Constitution’s enumeration says and the history behind its creation. Nothing
about the mere fact of the enumeration, he contends, need entail the particular
set of inferences American constitutional interpreters so naturally draw from
it. The “lens of enumerationism” (32) through which interpreters see the
Constitution and its history is so ingrained that it is often mistaken for “unfiltered
reality.” (3)
Primus
suggests that the conventional thinking about the Constitution’s enumerated
powers is propped up by interlocking accounts about the Constitution’s text,
structure, and history. He readily acknowledges that there is support for the
enumerationist view—it is a plausible way to read the Constitution’s text, to
understand how the system of American federalism could work, and to make sense
of the Constitution’s early history. But it is not the only way. He pushes
further than this to argue that it’s not an especially good way to make sense
of the Constitution either (not only is it optional but it’s also deficient).
Whatever one makes of his stronger argument, however, simply demonstrating that
there are alternatives to enumerationism poses a serious challenge that all
must take seriously.
This
is especially true when it comes to the historical account on which
enumerationism rests. Primus begins with history, before moving to structure
and text, because he rightly recognizes how foundational intuitions about the
Founders’ original intentions and goals are to eumerationism’s enduring power. Historical
narrative and constitutional memory play an especially important role
sustaining the axiom. Textual and structural arguments depend on deeply held
assumptions about what the American Founding generation must have been trying
to achieve in opting to enumerate the national government’s powers, most
prominently Congress’s legislative powers in Article I, Section 8 of the
Constitution. Because, as Primus explains, “[i]ntuitive views about why the
Constitution was written and ratified contribute to Americans’ ideas about the
content of constitutional law,” he aims “to put pressure on some of the
important historical intuitions that support enumerationism by showing that
parts of the story undergirding that view of constitutional law are too
simple—and other parts are simply wrong.” (32-33)
What
makes Primus’s book especially powerful is how effectively he shifts the burden
onto those who are sure to be skeptical of his challenge. His extensive and
thought-provoking account of Founding-era constitution-making does this
particularly well. As Primus shows, there was a wide diversity of views at the
Founding. Some at the time thought that the point of enumerating the federal
government’s power was to limit what that government could do and that the
Constitution should be interpreted as having done just that. But many did not
share that thinking. To meet Primus’s challenge, it must be explained why some
voices carry more weight than others when there was such a remarkable range of
views on offer. There were many “visions,” as he so effectively demonstrates,
“embedded in the Constitution from the beginning.” (115) Enumerationism might
have been one such vision, but there were many others too.
Jonathan Gienapp
When
we interpret the U.S. Constitution, we often rely on deep-seated intuitions. We
take certain things for granted and see things through a particular lens. Among
the valuable things an interpretive tradition offers is it furnishes us with
these kinds of shared points of entry and pedagogical groundings allowing a
common conversation to flourish and endure while permitting new interpreters to
join the community. Over time, however, those shared assumptions can calcify
into rigid axioms, and interpreters can slowly lose their capacity to
critically evaluate their intuitions as intuitions. Rules of thumb are
crucial. But if essentialized, they can cloud one’s vision, making it hard to
see alternatives that might merit attention. Among the many achievements of
Richard Primus’s outstanding new book, The Oldest Constitutional Question:
Enumeration and Federal Power, is how vividly it illustrates how
constitutional intuitions tend to work. By taking one of the most enduring and
consequential assumptions that interpreters of the Constitution hold—that it
creates a government limited to its enumerated powers—and exposing and
dismantling it, Primus shows more broadly how constitutional intuitions are
rooted, entrenched, and sustained while also showing how they might be
questioned and rethought.
Primus
calls the dominant way of thinking about the Constitution’s enumerated powers
“enumerationism” to underscore that it is but one way of understanding the fact
of enumeration. The term picks out the long-dominant understanding, drilled
into each generation of constitutional interpreters, that the federal
government’s powers are limited to those enumerated and that the enumeration
itself is limiting. The reason powers are enumerated in the Constitution is, by
this thinking, to set what Primus calls internal limits on what the federal
government can do, thus ensuring that it never enjoys the kind of general
jurisdiction that the state governments claim. Primus’s main ambition is to
unsettle these interpretive intuitions—to get interpreters to see that they are
held captive by a particular way of thinking about enumerated powers that,
however credible, is hardly the only way to make sense of what the
Constitution’s enumeration says and the history behind its creation. Nothing
about the mere fact of the enumeration, he contends, need entail the particular
set of inferences American constitutional interpreters so naturally draw from
it. The “lens of enumerationism” (32) through which interpreters see the
Constitution and its history is so ingrained that it is often mistaken for “unfiltered
reality.” (3)
Primus
suggests that the conventional thinking about the Constitution’s enumerated
powers is propped up by interlocking accounts about the Constitution’s text,
structure, and history. He readily acknowledges that there is support for the
enumerationist view—it is a plausible way to read the Constitution’s text, to
understand how the system of American federalism could work, and to make sense
of the Constitution’s early history. But it is not the only way. He pushes
further than this to argue that it’s not an especially good way to make sense
of the Constitution either (not only is it optional but it’s also deficient).
Whatever one makes of his stronger argument, however, simply demonstrating that
there are alternatives to enumerationism poses a serious challenge that all
must take seriously.
This
is especially true when it comes to the historical account on which
enumerationism rests. Primus begins with history, before moving to structure
and text, because he rightly recognizes how foundational intuitions about the
Founders’ original intentions and goals are to eumerationism’s enduring power. Historical
narrative and constitutional memory play an especially important role
sustaining the axiom. Textual and structural arguments depend on deeply held
assumptions about what the American Founding generation must have been trying
to achieve in opting to enumerate the national government’s powers, most
prominently Congress’s legislative powers in Article I, Section 8 of the
Constitution. Because, as Primus explains, “[i]ntuitive views about why the
Constitution was written and ratified contribute to Americans’ ideas about the
content of constitutional law,” he aims “to put pressure on some of the
important historical intuitions that support enumerationism by showing that
parts of the story undergirding that view of constitutional law are too
simple—and other parts are simply wrong.” (32-33)
What
makes Primus’s book especially powerful is how effectively he shifts the burden
onto those who are sure to be skeptical of his challenge. His extensive and
thought-provoking account of Founding-era constitution-making does this
particularly well. As Primus shows, there was a wide diversity of views at the
Founding. Some at the time thought that the point of enumerating the federal
government’s power was to limit what that government could do and that the
Constitution should be interpreted as having done just that. But many did not
share that thinking. To meet Primus’s challenge, it must be explained why some
voices carry more weight than others when there was such a remarkable range of
views on offer. There were many “visions,” as he so effectively demonstrates,
“embedded in the Constitution from the beginning.” (115) Enumerationism might
have been one such vision, but there were many others too.
It
is often assumed that the only reason there was to enumerate constitutional
powers was to limit and constrain. But in late eighteenth-century America,
there were in fact several distinct reasons to enumerate powers. Framers could
indeed enumerate to constrain. But they could also enumerate to empower. Primus
nicely emphasizes why this possibility was not only logically coherent but, in
the context of the United States in the 1780s, especially appealing. Under the
Articles of Confederation, the national government had struggled to wield
powers many felt it was fairly entitled to in the face of intransigent state
governments and their defenders. At the Federal Convention, nationalist
reformers thus had ample incentive to expressly specify some of the important
things that a reformed national government could do. The purpose of the
enumeration was thus in line with the purpose animating constitutional reform
in the first place: to adequately empower the national government so it could
meet the challenges of the post-war crisis that the impotent Confederation
Congress had been unable to meet. As Primus also persuasively explains,
enumerating national legislative power was not only important in the context of
federalism but also the separation of powers as it was useful to enumerate
certain congressional powers that otherwise might have been claimed by the
President as inherently executive in nature. There was another reason still to
enumerate powers—to neither limit nor empower but instead to declare powers
already in existence. Unlike in the first two possibilities, where
constitutional powers are created through enumerating them, in this third
instance, the enumeration merely announces and reinforces powers that have
already been legally delegated. Where many today intuit one purpose for
enumerating powers, at the Founding there were at least three. And several
important eighteenth-century framers interpreted the enumeration of federal
power in the Constitution in light of the other two purposes (to empower and to
declare).
Because different Founding-era
interpreters believed that the enumeration served different purposes, they
accordingly read the enumeration, and thus the scope of national power under
the Constitution, quite differently. The most familiar disagreements from the
standpoint of modern constitutional law unfolded beneath the enumerated powers
themselves where interpreters broadly agreed that those powers marked the ends
of national governance. Even when this premise was more or less shared,
interpreters could still arrive at radically different readings based on how
strictly or broadly they interpreted both the enumerated powers themselves and
the means needed to pursue them. Those who thought that the enumeration was
meant to limit federal power, read the enumerated powers more narrowly. Those,
by contrast, who thought the enumeration was meant to empower the federal
government to fulfill its essential purposes read the powers more broadly. This
disagreement over how to read ends was usually paralleled by a disagreement
over how to read means, which typically ran through the Necessary and Proper Clause
that punctuated the enumeration of legislative powers in Article I, Section 8.
Those who read the enumeration as inherently limiting the national government
treated the Necessary and Proper Clause as an incidental powers clause—vesting
the national government with only those powers that were essential (or mostly
necessary) to carry out the enumerated powers. The government was therefore
limited in its choice of means to those that were truly indispensable. (Thomas
Jefferson made this argument in 1791 in finding a
national bank unconstitutional.) Those by contrast who read the enumeration as
empowering the national government treated the Necessary and Proper Clause as a
sweeping clause—“a clause,” Primus explains, “inserted at the end of a list of
particulars to negate the possible inference that the list was exhaustive.”
(103) The government, accordingly, had flexibility to choose the means that
were best suited to the project at hand—if not, perhaps, the means that simply
maximized public utility, then at least those that were “plainly adapted” (in
John Marshall’s phrasing in McCulloch v.
Maryland).
Within just this space, there was ample room to maneuver.
But
that barely scratched the surface, for interpreters at the Founding also held
very different views of the ends of national governance themselves, as Primus
illustrates. Those who favored national power sometimes accepted that those
ends were limited to the enumeration of powers—in part because the Necessary
and Proper Clause ensured that those ends would be suitably broad and flexible—but
often they rejected that premise. Several leading interpreters—such as Hamilton
in his opinion defending the constitutionality of a national bank and later
Marshall in McCulloch v. Maryland—argued that the enumerated powers aggregated
together
into more general powers that tracked the essential purposes of the union.
These aggregate powers that arose out of the enumerated powers, and not the
enumerated powers themselves, were the true ends of national governance under
the Constitution. On this account, chartering a national bank was ultimately
constitutional not because doing so was authorized by a particular enumerated
power or was a necessary means for carrying one of those powers into effect,
but because a cluster of enumerated powers (to lay and collect taxes, to borrow
money, to coin money, to dispose of the property of the United States, and so
on) pertaining to the administration of finances combined to form an aggregate
fiscal power. As Hamilton explained, “it is the
manifest design and scope of the Constitution to vest in Congress all the
powers requisite to the effectual administration of the finances of the United
States.” The administration of U.S. finances being a legitimate end of
governance, therefore, a national bank was an appropriate means for carrying
that broader end, seen on “an aggregate view of the Constitution,” into effect.
Other
interpreters looked even further beyond the enumerated powers, not just above
them to a set of aggregate powers but outside of them to the inherent powers of
nationhood. James Wilson was the leading defender of this view, though it
enjoyed ample support in the Founding
era, especially in the First Federal Congress when the constitutionality of the
national bank was debated. The essential argument here was that
the United States was a nation, based on the vital fact that in 1776 Americans
had declared independence from Britain collectively as a single united entity
rather than separately as distinct political states. Therefore, the government
representing that single union was by definition a national government equipped
with all the essential sovereign powers of union. Some believed that these
powers derived from the law of nations based on the idea that the United States
enjoyed sovereign authority. Others instead turned to social contract (or
social compact) theory, which imagined a two-step process by which
constitutional government was established—first, a group of people left the
state of nature to form a political society (or a social compact), and then,
second, members of that society agreed to a government (or constitution)—to
argue that Americans had created a national social compact (and thus a national
people) in 1776, and because of that the general government that was
established to act in their name (first the Articles and then later the
Constitution) inherently enjoyed all the general powers of union. General
powers were those that were needed to address objects of general concern that
the separate states could not competently manage. And these general, or
resulting, powers “derived solely from the Union,” and thus belonged to that
government no matter whether those powers had been enumerated or not.
For
those who endorsed this account of national power, many of the enumerated
powers were declaratory in character, serving as reminder of what the act of a
national people creating a national government in their name entailed. That had
been true of Resolution VI of the Virginia Plan, which proposed vesting in
Congress the power to legislate in all cases in which the individual states
were incompetent or the national harmony depended. Since Resolution VI merely
declared what was already the case, it did not matter that this provision was
eventually replaced by a list of enumerated powers. And in case interpreters
failed to understand that, from his position on the Convention’s first major
drafting committee, the Committee of
Detail,
Wilson himself made sure, as John Mikhail has so vividly shown, that the
aforementioned Necessary and Proper Clause that punctuated that enumeration
empowered Congress to pass all laws necessary for carrying out not only the
“foregoing powers,” but also “all other powers vested, by this Constitution, in
the government of the United States.” Interpreters would need to identify these
“other powers” that were vested in the national government as a whole and
distinct from the foregoing enumerated powers. To further reinforce this
account of broad national power, Wilson’s nationalist ally, Gouverneur Morris, reworked the Preamble
that Wilson had initially drafted while serving on the final drafting
committee, the Committee of
Style and Arrangement.
Morris revised the Preamble so that it specified a series of broad ends for
which the Constitution would be established (providing potential referents for
the “other powers” alluded to in Wilson’s revised Necessary and Proper Clause).
He also altered the Constitution’s opening words of the Constitution—so it
began with the potent phrase “We the People of the United States”—to emphatically
underscore that the new national government spoke for a single national people.
On this view, neither the Necessary and Proper Clause nor the Preamble created
the suite of powers that inhered in nationhood, they merely declared (and thus
helped fortify) what was already so through the formation of union.
Unenumerated powers were operative whether they were enumerated or not.
In
the early United States, then, all could agree with Marshall in McCulloch that, “[i]f the
end be legitimate, and within the scope of the Constitution,” then the national
government could pursue it, while disagreeing mightily on what the legitimate
ends of national governance in fact were. Certainly, some at the Founding
thought the national government’s powers were created and limited by the
Constitution’s enumeration of powers. But many others did not. Others thought
the enumerated powers were designed to empower rather than constrain the
national government and thus were inherently broad in nature. Others still
believed that the enumerated powers combined to form a set of aggregate powers.
And still others thought that the enumerated powers were but one source of
national power, complementing, supplementing, or illustrating a broad set of
national powers that derived from the nature of the American union and the kind
of political society it embodied. Plenty of framers and interpreters were wary
of national power and eager to limit it, especially, as Primus underscores, to
ensure that the general government could not interfere with slavery. But plenty
of others embraced robust national power and confidently assumed that the
Constitution was on their side—that only those who misread the
enumeration could reach enumerationist conclusions. Any effort to root
enumerationism at the Founding must confront these competing views of national
power and the theories of delegated authority on which they rested and explain
why they are less important than the familiar alternative. The people who held
these competing views were hardly irrelevant or few in numbers. They were a
significant presence at the Constitutional Convention, in the First Federal Congress,
and on the early Supreme Court. Primus valuably brings their arguments back
into view and, in so doing, appropriately insists that, even if they were not the
only ones who mattered at the Founding, they mattered as much as anyone else.
The
standard way of discounting these more nationalist views of federal power is by
pointing to assurances offered during the highly charged ratification debates.
Primus accordingly devotes ample space to exploring these exchanges. Anti-Federalists
battered the proposed Constitution with criticisms, none more common than it
would create a consolidated
national government that would swallow the state governments and extinguish
American liberty in the process. In response, Federalists reassured these
skeptics that the new national government would be limited in nature, noting
that it would not have general jurisdiction like the state governments did and thus
would be able to exercise only those powers expressly delegated to it. They
often made these arguments, as Primus explores in particular detail, in the
context of justifying the omission of a federal bill of rights, which
Anti-Federalists repeatedly denounced. Primus skillfully navigates this
terrain, again effectively shifting the argumentative burden. He rightly asks
why Federalist assurances that national power would be limited should carry
more interpretive weight than Anti-Federalist allegations that it would not,
especially since Anti-Federalists’ incisive (if at times extravagant)
interpretations of not simply the enumerated powers themselves but especially
the Necessary and
Proper Clause
and the Preamble anticipated
many of the arguments Federalists would aggressively pursue post-ratification. Anti-Federalists
had good reason to worry that the Constitution would alter the nature of
the federal union, replacing a confederacy with a national social
compact
of individuals, and about what this might portend for the federal government’s
powers. All of this made Anti-Federalists understandably wary of Federalists’
post hoc argument explaining the omission of a bill of rights. As Primus notes,
this argument failed to persuade anyone. Those moderate Anti-Federalists who
ultimately chose to ratify largely did so, it seems, in spite of these manufactured
assurances. Then there were the debates over national power and the charged
issue of slavery, which mapped in peculiar ways based on geography. Whereas Northern
Federalists and Southern Anti-Federalists tended to agree on the Constitution’s
implications (that it tilted toward abolition) if not whether that was to be
cheered (James Wilson thought it was reason to ratify whereas Patrick Henry
thought it was reason to reject), Southern Federalists and Northern
Anti-Federalists were exactly reversed, agreeing that the Constitution
protected slavery while disagreeing on whether that was desirable (James
Madison pitched it as a reason for southern planters to ratify with confidence
whereas William Findley and other critics in states like Pennsylvania and
Massachusetts thought it further reason to condemn the Constitution). Primus
maps this rich debate in all its complexity to stress that the Constitution was
ratified without agreement on what the precise scope of national power under
that Constitution would be. Even if some surely favored enumerationism and
leading defenders offered assurances in its favor, that is not sufficient to
prove that enumerationism was itself ratified. Rather than having “settled issues
about the powers of Congress,” the ratification debates, Primus writes,
“ventilated possible positions that would then be argued in the actual practice
of American governance.” (171)
As for the assurances that
Federalists offered, it should also be stressed that in some instances they drew
on their view of delegated national power and widely shared views of constitutional
enumeration to not simply distract from their ideas but in fact to defend them.
When some Federalists like Charles Cotesworth Pinckney assured skeptics that
the national government would be limited to those powers “expressly delegated,”
he almost surely meant that Congress would be limited to those powers
enumerated in Article I, Section 8. Not only was slavery front of mind for the
South Carolinian, as Primus underscores, but there is good reason to think that
Pinckney was capturing his own view. But when Wilson explained in his famed State House Yard
speech
that “congressional authority is to be collected, not from tacit implication,
but from the positive grant expressed in the instrument of union” or pointed,
as he did in the Pennsylvania
ratifying convention,
to “the powers…particularly enumerated,” he was not saying anything that
necessarily contradicted his core anti-enumerationist views. For on his account
of how power was constitutionally delegated in the United States, inherent
national powers were part of the Constitution’s “positive grant” by virtue of
the underlying national social compact on which “this Constitution” was
essentially grounded and clearly “expressed in the instrument of union” on
account of what he and his allies had made sure the Necessary and Proper Clause
and the Preamble said. Because these general powers of nationhood were at once
unenumerated (inhering in the nature of the union) and enumerated (expressly
reinforced in the Constitution’s text), it was easy for Wilson to shade in
either direction, since from his point of view both were true. (It also meant
that “instrument of union,” like “this Constitution,” could pick out a
broader object
than we find intuitive since, by the logic of social compact theory, an
eighteenth-century “constitution” was usually regarded to be both the
constitution of government as well as the social compact that stood beneath
it.) This account was also fully consistent with Federalists’ repeated
assurance that the federal government would enjoy a different kind of authority
than the state governments, for the national government could enjoy far more
power than a limited and limiting view of the enumeration entailed without
enjoying power equal to a general police power. Or so one could credibly argue.
Primus is thus persuasive that Wilson’s famous speech should be read
differently than it often is—laying out multiple alternatives to the
conventional reading (130-36). Though even if Wilson was surely downplaying the
implications of more nationalist readings to help ensure the Constitution’s
popular ratification, it is still worth recognizing how, on the terms of
familiar eighteenth-century constitutional premises, he could square his
understanding of inherent, unenumerated power with the idea of enumerated
powers.
This understanding of delegated
national authority also complicated debates over whether to include a retained
powers clause in the Constitution along the lines of the one found in the
Articles of Confederation, which reserved to the states those powers not
“expressly delegated” to the national government. Anti-Federalists clamored for
its inclusion and later lamented that the
eventual Tenth Amendment omitted the word “expressly.” Many people at the time
clearly thought that these things would have or did make a difference. But to
others like Wilson, for the reasons just laid out, including a reserved powers
clause limiting the national government to only those powers “expressly
delegated” would not even necessarily have changed the scope of federal power. By
his thinking, the Constitution already expressly delegated all the essential
powers of union. That did not mean, however, that adding a strong reserved
powers clause would not have made any practical difference. To the contrary, it
likely would have changed what other interpreters made of the Constitution, encouraging
them to misread it. Its inclusion, therefore, would have been problematic if
not potentially catastrophic. But that only confirmed what Wilson already knew:
that many textual directives written into the Constitution mattered more for
how they socialized interpreters than anything else. To Wilson’s mind, the
primary reason why it was useful to enumerate so many national powers in the
new Constitution, including those in the Necessary and Proper Clause and the
Preamble, was to ensure that the national government would not be deprived of
its rightful power as it had been under the Articles of Confederation.
Efforts to
justify the omission of a federal bill of rights, meanwhile, tapped into deeply
rooted understandings of enumerated rights and constitutional liberty. Hamilton
did so quite vividly in Federalist 84. Primus’s primary aim in
discussing this essay is to discount what is often taken to be Hamilton’s core
argument in it, in which he revived Wilson’s earlier argument from his
oft-cited State House Yard speech that a federal bill of rights was unnecessary
since the federal government’s powers, unlike the state governments’, were
limited to those clearly delegated. Primus suggests that Hamilton might not
have been terribly persuaded by his own argument, noting that Hamilton only
addressed the omission of a bill of rights very late in ratification process
and failed to repeat those arguments in the significant and bitterly contested
New York ratifying convention that followed. (167-68) These points are
well-taken. But there are other ways to more positively read Hamilton’s essay,
which ultimately reinforce rather than challenge Primus’s broader arguments
about enumeration.
Hamilton’s
primary argument in Federalist 84 was arguably not that bills of
rights were unnecessary in a federal constitution but that they were
unnecessary in all republican constitutions “founded upon the power of the
people.” Even if rights declarations were especially unnecessary in the former,
they were nonetheless broadly unnecessary under all popular governments, where
“the people surrender nothing, and…retain every thing,” and thus “have no need
of particular reservations.” Hamilton was recognizing what was widely understood at the time but is no longer intuitive—that
under popular sovereignty, most fundamental rights were constitutionally
established and protected outside the written constitution. Most retained
natural rights and fundamental common law rights were believed to be entrenched
through the creation of the social compact, when the people created political
society and established their sovereign authority, and before they framed a
constitution of government. That meant, crucially, that these rights did not need to be expressly
enumerated in
constitutional text to enjoy constitutional status. Often these rights were
enumerated in written constitutions, as in the majority of the American state constitutions drafted around the time of
independence, but those provisions were usually declaratory in character, merely
announcing rights that already enjoyed fundamental status rather than formally
transforming rights into constitutional privileges. The enumeration of fundamental
rights did not tend to alter their legal status. This was no less true under
the state constitutions than the federal constitution. And this was Hamilton’s
chief point. It was why he began his essay by reminding Anti-Federalists that
several state constitutions, including conspicuously New York’s, lacked
declarations of rights. He was probably not overlooking the fact that most
states had declarations of rights in one form or another, as Primus suggests,
but instead reminding his audience that bills of rights were not legally
necessary in republics. He was especially reminding citizens of New York of
what they knew: that they enjoyed the same broad fundamental rights as citizens
in those other states that happened to have codified their rights in their
constitutions.
Certainly,
as with powers, there might still have been good reasons to enumerate rights.
As James Madison emphasized first to Thomas Jefferson and later when introducing a proposal for
a federal bill of rights in Congress, rights declarations could serve a
valuable educative function by reminding citizens of their core rights. In
enumerating rights, drafters could also alter the legal content of fundamental
rights by more precisely specifying their substance and boundaries.
(For instance, a provision might merely declare that members of the community
enjoyed the freedom of the press or a right to trial by jury, but it could do
more than that by more clearly specifying a set of legal rules that shaped the
operative effect of a right.) At the same time, there might be dangers in
enumerating rights, as doing so might create the misleading impression that
those rights that happened to be enumerated were somehow more important than
those that had not been—a frequent Federalist rejoinder that Hamilton was sure
to hit.
Whatever
the case, Hamilton only proceeded to talk about why the U.S. Constitution
lacked a bill of rights once he had first established that U.S.
constitutionalism had to that point downplayed the need to legally enshrine
rights protections in written constitutions. Anti-Federalists had been claiming
that Federalists were pulling a fast one, so Hamilton was eager to point out
how Anti-Federalists were actually the ones who were innovating, and in ways
that cast doubt on many of the state constitutions they otherwise celebrated.
More than
this, Hamilton, like other Federalists before him, was underscoring how in fact
the people retained their fundamental rights under all republican
governments—be it state or national. People did not retain their rights by
ensuring that they were enumerated in a written constitution. Madison was not
alone in calling such text-based liberty
protections “parchment barriers.” People most effectively retained their rights
instead through well-structured representative government, or what Primus calls
process limits. Ensuring that the government was predicated on the people’s
sovereignty and in its operations appropriately embodied and mirrored the
people was the surest method there was for preserving the people’s liberty.
Thus, even enumerated rights, which to us look like affirmative prohibitions,
or external limits, on what the government could do, were quite entwined with
process limits. That was especially true of retained natural rights (forms of
natural liberty that had been enjoyed in the hypothetical state of nature such
as the right to speak, think, or travel). Those rights were retained not by
prohibiting the government from interfering with them but by requiring that government regulations of
those rights were only ever conducted by genuinely representative institutions
and in the service of the common good. Natural rights of this stripe were
retained through republicanism—through process limits. While this was most true
of retained natural rights, it was also broadly true of other liberty
provisions as well, including fundamental common law rights that placed clearer
limits on government action (like rules against press licensing or ex post
facto laws). Those rights were often declared in broad terms as well, leaving
it to the people themselves and the institutions that best represented them
(not just legislatures but also especially juries) to more precisely map the
contours and boundaries of those rights. That is what Hamilton was getting at
in Federalist 84 when he wrote that, “whatever fine
declarations may be inserted in any constitution…[liberty] must altogether
depend on public opinion, and on the general spirit of the people and of the
government.” That was “the only solid basis of all our rights.” Broadly
speaking, to the Founding generation, external limits were interlaced with
process limits.
This is also
what Hamilton was gesturing toward in that same essay when he argued that the
Constitution itself was a bill of rights. His point was in part that the people
were the Constitution’s ultimate source of sovereignty and thus enjoyed the
power to make and remake their constitutional order. Which is why he claimed
that the Preamble specifically was “a better recognition of popular rights”
than could be found anywhere. Wilson had advanced a similar argument even more emphatically in the
Pennsylvania ratifying convention, asserting that the “single sentence in the
Preamble is tantamount to a volume and contains the essence of all the bills of
rights that have been or can be devised.” But the Constitution was also,
Hamilton went on, “in every rational sense, and to every useful purpose, A BILL
OF RIGHTS” because it protected liberty through a well-structured,
representative system of federal governance.
Ironically,
despite clamoring for a federal bill of rights, Anti-Federalists strongly
agreed with Hamilton’s point that liberty was best protected through structure
not text—context that is often missed. The primary problem with the proposed
Constitution was that it was poised to establish an unrepresentative, distant
federal government that would be unresponsive to the people. The best way to
address this problem was by amending the structure of the federal system, by
making the federal government more representative and reserving more power to
the state governments. It was only because the Constitution promised to
establish an unrepresentative government that Anti-Federalists emphasized the
auxiliary value of enumerating certain fundamental rights. But throughout, they
most coveted structural amendments over rights provisions (and were
disappointed with the eventual amendments added to the Constitution precisely
because they failed to amend the government’s structural defects). It was because
Anti-Federalists agreed with Hamilton and other Federalists that liberty was
best protected through structure that they so cherished the state constitutions
and were relatively unconcerned that several of those constitutions lacked
declarations of rights. Only in a particular context, therefore, were
Anti-Federalists worried about internal or external limits. They too believed,
at bottom, that process limits were the essence of republican liberty.
All of
which is to say that rather than just paying lip service to an unsatisfying
argument, Hamilton was also using the omission of a bill of rights to reinforce
a view of constitutional limits broadly in line with Primus’s own. Hamilton,
like Federalists before him, assuredly emphasized internal limits. But when
placed in a broader context, both his arguments in Federalist 84 and the
Anti-Federalist objections to which he was responding take on additional
meaning. We now treat textually enumerated rights provisions more clearly as external
limits. That is one of the many ways in which our constitutionalism differs
from the Founders’. But as Primus stresses throughout, we still rely
significantly on process limits, and for many of the reasons that the Founding
generation did.
Nonetheless,
things have changed since the Founding. The paradigm
and premises on which Wilson, Hamilton, and others depended have, to a great
extent, disappeared or changed beyond recognition. Constitutionalists no longer
reason by way of social compact theory, treat fundamental law as the fusion of
non-positivist and positivist sources, or assume delegated federal authority as
entwined with the origins of union. On the other side of realist and positivist
revolutions in legal thinking, intuitions have changed. That does not mean that
Founding-era arguments that cast doubt on enumerationism are no longer tenable,
but they are unmoored from the constitutional culture that once breathed life
into them. That helps explain one of the crucial shifts that Primus charts in
the second half of his book, where he considers the development of
constitutional doctrine and argument since the early decades of the republic.
Where many assume that U.S. constitutional law has simply drifted away from enumerationism,
he paints a much subtler picture, persuasively arguing that from the nineteenth
to the twentieth century, constitutional law in fact shifted from an
orientation in which unenumerated powers were recognized but, in part because
the federal government lacked broad capacity, congressional authority was
understood to fall short of enjoying comprehensive reach, to one in which
unenumerated powers were no longer readily recognized but Congress’s enumerated
powers cumulatively could potentially reach everything. (267) Primus’s
explanations for why this shift occurred are compelling. But the shift is
likely also explained by a broader shift in jurisprudential thinking. In
our modern realist and positivist world, it might be harder to assimilate unenumerated
power, whereas to earlier generations of constitutional thinkers who proceed on
different legal assumptions, those kinds of powers were more obviously grounded
in habitual understandings of fundamental law and how the sovereign people shaped
it. If that is true, that might cast additional doubt on modern efforts to
ground enumerationism in the Founding.
What is
clear is that anyone hoping to better understand the Constitution and its
delegated powers, enumerated or not, must read Primus’s important book. Whether
ultimately persuaded by its arguments, everyone needs to wrestle with them. Primus
skillfully prods at deep-seated assumptions, compelling us to see familiar
aspects of the Constitution in a fresh light. The next time the Supreme Court
insists as a matter of course that the federal government has always been
limited to its enumerated powers, hopefully more readers will habitually point
out the alternative ways of understanding federal power that have been around
since the Constitution was created. In bringing those alternatives so vividly
into view, Primus has offered more than new interpretations: he has begun to
alter the deeper intuitions on which interpretations often depend.
Jonathan
Gienapp is Associate Professor of History and Law at Stanford University. He
can be reached at jgienapp@stanford.edu.
is often assumed that the only reason there was to enumerate constitutional
powers was to limit and constrain. But in late eighteenth-century America,
there were in fact several distinct reasons to enumerate powers. Framers could
indeed enumerate to constrain. But they could also enumerate to empower. Primus
nicely emphasizes why this possibility was not only logically coherent but, in
the context of the United States in the 1780s, especially appealing. Under the
Articles of Confederation, the national government had struggled to wield
powers many felt it was fairly entitled to in the face of intransigent state
governments and their defenders. At the Federal Convention, nationalist
reformers thus had ample incentive to expressly specify some of the important
things that a reformed national government could do. The purpose of the
enumeration was thus in line with the purpose animating constitutional reform
in the first place: to adequately empower the national government so it could
meet the challenges of the post-war crisis that the impotent Confederation
Congress had been unable to meet. As Primus also persuasively explains,
enumerating national legislative power was not only important in the context of
federalism but also the separation of powers as it was useful to enumerate
certain congressional powers that otherwise might have been claimed by the
President as inherently executive in nature. There was another reason still to
enumerate powers—to neither limit nor empower but instead to declare powers
already in existence. Unlike in the first two possibilities, where
constitutional powers are created through enumerating them, in this third
instance, the enumeration merely announces and reinforces powers that have
already been legally delegated. Where many today intuit one purpose for
enumerating powers, at the Founding there were at least three. And several
important eighteenth-century framers interpreted the enumeration of federal
power in the Constitution in light of the other two purposes (to empower and to
declare).
Because different Founding-era
interpreters believed that the enumeration served different purposes, they
accordingly read the enumeration, and thus the scope of national power under
the Constitution, quite differently. The most familiar disagreements from the
standpoint of modern constitutional law unfolded beneath the enumerated powers
themselves where interpreters broadly agreed that those powers marked the ends
of national governance. Even when this premise was more or less shared,
interpreters could still arrive at radically different readings based on how
strictly or broadly they interpreted both the enumerated powers themselves and
the means needed to pursue them. Those who thought that the enumeration was
meant to limit federal power, read the enumerated powers more narrowly. Those,
by contrast, who thought the enumeration was meant to empower the federal
government to fulfill its essential purposes read the powers more broadly. This
disagreement over how to read ends was usually paralleled by a disagreement
over how to read means, which typically ran through the Necessary and Proper Clause
that punctuated the enumeration of legislative powers in Article I, Section 8.
Those who read the enumeration as inherently limiting the national government
treated the Necessary and Proper Clause as an incidental powers clause—vesting
the national government with only those powers that were essential (or mostly
necessary) to carry out the enumerated powers. The government was therefore
limited in its choice of means to those that were truly indispensable. (Thomas
Jefferson made this argument in 1791 in finding a
national bank unconstitutional.) Those by contrast who read the enumeration as
empowering the national government treated the Necessary and Proper Clause as a
sweeping clause—“a clause,” Primus explains, “inserted at the end of a list of
particulars to negate the possible inference that the list was exhaustive.”
(103) The government, accordingly, had flexibility to choose the means that
were best suited to the project at hand—if not, perhaps, the means that simply
maximized public utility, then at least those that were “plainly adapted” (in
John Marshall’s phrasing in McCulloch v.
Maryland).
Within just this space, there was ample room to maneuver.
But
that barely scratched the surface, for interpreters at the Founding also held
very different views of the ends of national governance themselves, as Primus
illustrates. Those who favored national power sometimes accepted that those
ends were limited to the enumeration of powers—in part because the Necessary
and Proper Clause ensured that those ends would be suitably broad and flexible—but
often they rejected that premise. Several leading interpreters—such as Hamilton
in his opinion defending the constitutionality of a national bank and later
Marshall in McCulloch v. Maryland—argued that the enumerated powers aggregated
together
into more general powers that tracked the essential purposes of the union.
These aggregate powers that arose out of the enumerated powers, and not the
enumerated powers themselves, were the true ends of national governance under
the Constitution. On this account, chartering a national bank was ultimately
constitutional not because doing so was authorized by a particular enumerated
power or was a necessary means for carrying one of those powers into effect,
but because a cluster of enumerated powers (to lay and collect taxes, to borrow
money, to coin money, to dispose of the property of the United States, and so
on) pertaining to the administration of finances combined to form an aggregate
fiscal power. As Hamilton explained, “it is the
manifest design and scope of the Constitution to vest in Congress all the
powers requisite to the effectual administration of the finances of the United
States.” The administration of U.S. finances being a legitimate end of
governance, therefore, a national bank was an appropriate means for carrying
that broader end, seen on “an aggregate view of the Constitution,” into effect.
Other
interpreters looked even further beyond the enumerated powers, not just above
them to a set of aggregate powers but outside of them to the inherent powers of
nationhood. James Wilson was the leading defender of this view, though it
enjoyed ample support in the Founding
era, especially in the First Federal Congress when the constitutionality of the
national bank was debated. The essential argument here was that
the United States was a nation, based on the vital fact that in 1776 Americans
had declared independence from Britain collectively as a single united entity
rather than separately as distinct political states. Therefore, the government
representing that single union was by definition a national government equipped
with all the essential sovereign powers of union. Some believed that these
powers derived from the law of nations based on the idea that the United States
enjoyed sovereign authority. Others instead turned to social contract (or
social compact) theory, which imagined a two-step process by which
constitutional government was established—first, a group of people left the
state of nature to form a political society (or a social compact), and then,
second, members of that society agreed to a government (or constitution)—to
argue that Americans had created a national social compact (and thus a national
people) in 1776, and because of that the general government that was
established to act in their name (first the Articles and then later the
Constitution) inherently enjoyed all the general powers of union. General
powers were those that were needed to address objects of general concern that
the separate states could not competently manage. And these general, or
resulting, powers “derived solely from the Union,” and thus belonged to that
government no matter whether those powers had been enumerated or not.
For
those who endorsed this account of national power, many of the enumerated
powers were declaratory in character, serving as reminder of what the act of a
national people creating a national government in their name entailed. That had
been true of Resolution VI of the Virginia Plan, which proposed vesting in
Congress the power to legislate in all cases in which the individual states
were incompetent or the national harmony depended. Since Resolution VI merely
declared what was already the case, it did not matter that this provision was
eventually replaced by a list of enumerated powers. And in case interpreters
failed to understand that, from his position on the Convention’s first major
drafting committee, the Committee of
Detail,
Wilson himself made sure, as John Mikhail has so vividly shown, that the
aforementioned Necessary and Proper Clause that punctuated that enumeration
empowered Congress to pass all laws necessary for carrying out not only the
“foregoing powers,” but also “all other powers vested, by this Constitution, in
the government of the United States.” Interpreters would need to identify these
“other powers” that were vested in the national government as a whole and
distinct from the foregoing enumerated powers. To further reinforce this
account of broad national power, Wilson’s nationalist ally, Gouverneur Morris, reworked the Preamble
that Wilson had initially drafted while serving on the final drafting
committee, the Committee of
Style and Arrangement.
Morris revised the Preamble so that it specified a series of broad ends for
which the Constitution would be established (providing potential referents for
the “other powers” alluded to in Wilson’s revised Necessary and Proper Clause).
He also altered the Constitution’s opening words of the Constitution—so it
began with the potent phrase “We the People of the United States”—to emphatically
underscore that the new national government spoke for a single national people.
On this view, neither the Necessary and Proper Clause nor the Preamble created
the suite of powers that inhered in nationhood, they merely declared (and thus
helped fortify) what was already so through the formation of union.
Unenumerated powers were operative whether they were enumerated or not.
In
the early United States, then, all could agree with Marshall in McCulloch that, “[i]f the
end be legitimate, and within the scope of the Constitution,” then the national
government could pursue it, while disagreeing mightily on what the legitimate
ends of national governance in fact were. Certainly, some at the Founding
thought the national government’s powers were created and limited by the
Constitution’s enumeration of powers. But many others did not. Others thought
the enumerated powers were designed to empower rather than constrain the
national government and thus were inherently broad in nature. Others still
believed that the enumerated powers combined to form a set of aggregate powers.
And still others thought that the enumerated powers were but one source of
national power, complementing, supplementing, or illustrating a broad set of
national powers that derived from the nature of the American union and the kind
of political society it embodied. Plenty of framers and interpreters were wary
of national power and eager to limit it, especially, as Primus underscores, to
ensure that the general government could not interfere with slavery. But plenty
of others embraced robust national power and confidently assumed that the
Constitution was on their side—that only those who misread the
enumeration could reach enumerationist conclusions. Any effort to root
enumerationism at the Founding must confront these competing views of national
power and the theories of delegated authority on which they rested and explain
why they are less important than the familiar alternative. The people who held
these competing views were hardly irrelevant or few in numbers. They were a
significant presence at the Constitutional Convention, in the First Federal Congress,
and on the early Supreme Court. Primus valuably brings their arguments back
into view and, in so doing, appropriately insists that, even if they were not the
only ones who mattered at the Founding, they mattered as much as anyone else.
The
standard way of discounting these more nationalist views of federal power is by
pointing to assurances offered during the highly charged ratification debates.
Primus accordingly devotes ample space to exploring these exchanges. Anti-Federalists
battered the proposed Constitution with criticisms, none more common than it
would create a consolidated
national government that would swallow the state governments and extinguish
American liberty in the process. In response, Federalists reassured these
skeptics that the new national government would be limited in nature, noting
that it would not have general jurisdiction like the state governments did and thus
would be able to exercise only those powers expressly delegated to it. They
often made these arguments, as Primus explores in particular detail, in the
context of justifying the omission of a federal bill of rights, which
Anti-Federalists repeatedly denounced. Primus skillfully navigates this
terrain, again effectively shifting the argumentative burden. He rightly asks
why Federalist assurances that national power would be limited should carry
more interpretive weight than Anti-Federalist allegations that it would not,
especially since Anti-Federalists’ incisive (if at times extravagant)
interpretations of not simply the enumerated powers themselves but especially
the Necessary and
Proper Clause
and the Preamble anticipated
many of the arguments Federalists would aggressively pursue post-ratification. Anti-Federalists
had good reason to worry that the Constitution would alter the nature of
the federal union, replacing a confederacy with a national social
compact
of individuals, and about what this might portend for the federal government’s
powers. All of this made Anti-Federalists understandably wary of Federalists’
post hoc argument explaining the omission of a bill of rights. As Primus notes,
this argument failed to persuade anyone. Those moderate Anti-Federalists who
ultimately chose to ratify largely did so, it seems, in spite of these manufactured
assurances. Then there were the debates over national power and the charged
issue of slavery, which mapped in peculiar ways based on geography. Whereas Northern
Federalists and Southern Anti-Federalists tended to agree on the Constitution’s
implications (that it tilted toward abolition) if not whether that was to be
cheered (James Wilson thought it was reason to ratify whereas Patrick Henry
thought it was reason to reject), Southern Federalists and Northern
Anti-Federalists were exactly reversed, agreeing that the Constitution
protected slavery while disagreeing on whether that was desirable (James
Madison pitched it as a reason for southern planters to ratify with confidence
whereas William Findley and other critics in states like Pennsylvania and
Massachusetts thought it further reason to condemn the Constitution). Primus
maps this rich debate in all its complexity to stress that the Constitution was
ratified without agreement on what the precise scope of national power under
that Constitution would be. Even if some surely favored enumerationism and
leading defenders offered assurances in its favor, that is not sufficient to
prove that enumerationism was itself ratified. Rather than having “settled issues
about the powers of Congress,” the ratification debates, Primus writes,
“ventilated possible positions that would then be argued in the actual practice
of American governance.” (171)
As for the assurances that
Federalists offered, it should also be stressed that in some instances they drew
on their view of delegated national power and widely shared views of constitutional
enumeration to not simply distract from their ideas but in fact to defend them.
When some Federalists like Charles Cotesworth Pinckney assured skeptics that
the national government would be limited to those powers “expressly delegated,”
he almost surely meant that Congress would be limited to those powers
enumerated in Article I, Section 8. Not only was slavery front of mind for the
South Carolinian, as Primus underscores, but there is good reason to think that
Pinckney was capturing his own view. But when Wilson explained in his famed State House Yard
speech
that “congressional authority is to be collected, not from tacit implication,
but from the positive grant expressed in the instrument of union” or pointed,
as he did in the Pennsylvania
ratifying convention,
to “the powers…particularly enumerated,” he was not saying anything that
necessarily contradicted his core anti-enumerationist views. For on his account
of how power was constitutionally delegated in the United States, inherent
national powers were part of the Constitution’s “positive grant” by virtue of
the underlying national social compact on which “this Constitution” was
essentially grounded and clearly “expressed in the instrument of union” on
account of what he and his allies had made sure the Necessary and Proper Clause
and the Preamble said. Because these general powers of nationhood were at once
unenumerated (inhering in the nature of the union) and enumerated (expressly
reinforced in the Constitution’s text), it was easy for Wilson to shade in
either direction, since from his point of view both were true. (It also meant
that “instrument of union,” like “this Constitution,” could pick out a
broader object
than we find intuitive since, by the logic of social compact theory, an
eighteenth-century “constitution” was usually regarded to be both the
constitution of government as well as the social compact that stood beneath
it.) This account was also fully consistent with Federalists’ repeated
assurance that the federal government would enjoy a different kind of authority
than the state governments, for the national government could enjoy far more
power than a limited and limiting view of the enumeration entailed without
enjoying power equal to a general police power. Or so one could credibly argue.
Primus is thus persuasive that Wilson’s famous speech should be read
differently than it often is—laying out multiple alternatives to the
conventional reading (130-36). Though even if Wilson was surely downplaying the
implications of more nationalist readings to help ensure the Constitution’s
popular ratification, it is still worth recognizing how, on the terms of
familiar eighteenth-century constitutional premises, he could square his
understanding of inherent, unenumerated power with the idea of enumerated
powers.
This understanding of delegated
national authority also complicated debates over whether to include a retained
powers clause in the Constitution along the lines of the one found in the
Articles of Confederation, which reserved to the states those powers not
“expressly delegated” to the national government. Anti-Federalists clamored for
its inclusion and later lamented that the
eventual Tenth Amendment omitted the word “expressly.” Many people at the time
clearly thought that these things would have or did make a difference. But to
others like Wilson, for the reasons just laid out, including a reserved powers
clause limiting the national government to only those powers “expressly
delegated” would not even necessarily have changed the scope of federal power. By
his thinking, the Constitution already expressly delegated all the essential
powers of union. That did not mean, however, that adding a strong reserved
powers clause would not have made any practical difference. To the contrary, it
likely would have changed what other interpreters made of the Constitution, encouraging
them to misread it. Its inclusion, therefore, would have been problematic if
not potentially catastrophic. But that only confirmed what Wilson already knew:
that many textual directives written into the Constitution mattered more for
how they socialized interpreters than anything else. To Wilson’s mind, the
primary reason why it was useful to enumerate so many national powers in the
new Constitution, including those in the Necessary and Proper Clause and the
Preamble, was to ensure that the national government would not be deprived of
its rightful power as it had been under the Articles of Confederation.
Efforts to
justify the omission of a federal bill of rights, meanwhile, tapped into deeply
rooted understandings of enumerated rights and constitutional liberty. Hamilton
did so quite vividly in Federalist 84. Primus’s primary aim in
discussing this essay is to discount what is often taken to be Hamilton’s core
argument in it, in which he revived Wilson’s earlier argument from his
oft-cited State House Yard speech that a federal bill of rights was unnecessary
since the federal government’s powers, unlike the state governments’, were
limited to those clearly delegated. Primus suggests that Hamilton might not
have been terribly persuaded by his own argument, noting that Hamilton only
addressed the omission of a bill of rights very late in ratification process
and failed to repeat those arguments in the significant and bitterly contested
New York ratifying convention that followed. (167-68) These points are
well-taken. But there are other ways to more positively read Hamilton’s essay,
which ultimately reinforce rather than challenge Primus’s broader arguments
about enumeration.
Hamilton’s
primary argument in Federalist 84 was arguably not that bills of
rights were unnecessary in a federal constitution but that they were
unnecessary in all republican constitutions “founded upon the power of the
people.” Even if rights declarations were especially unnecessary in the former,
they were nonetheless broadly unnecessary under all popular governments, where
“the people surrender nothing, and…retain every thing,” and thus “have no need
of particular reservations.” Hamilton was recognizing what was widely understood at the time but is no longer intuitive—that
under popular sovereignty, most fundamental rights were constitutionally
established and protected outside the written constitution. Most retained
natural rights and fundamental common law rights were believed to be entrenched
through the creation of the social compact, when the people created political
society and established their sovereign authority, and before they framed a
constitution of government. That meant, crucially, that these rights did not need to be expressly
enumerated in
constitutional text to enjoy constitutional status. Often these rights were
enumerated in written constitutions, as in the majority of the American state constitutions drafted around the time of
independence, but those provisions were usually declaratory in character, merely
announcing rights that already enjoyed fundamental status rather than formally
transforming rights into constitutional privileges. The enumeration of fundamental
rights did not tend to alter their legal status. This was no less true under
the state constitutions than the federal constitution. And this was Hamilton’s
chief point. It was why he began his essay by reminding Anti-Federalists that
several state constitutions, including conspicuously New York’s, lacked
declarations of rights. He was probably not overlooking the fact that most
states had declarations of rights in one form or another, as Primus suggests,
but instead reminding his audience that bills of rights were not legally
necessary in republics. He was especially reminding citizens of New York of
what they knew: that they enjoyed the same broad fundamental rights as citizens
in those other states that happened to have codified their rights in their
constitutions.
Certainly,
as with powers, there might still have been good reasons to enumerate rights.
As James Madison emphasized first to Thomas Jefferson and later when introducing a proposal for
a federal bill of rights in Congress, rights declarations could serve a
valuable educative function by reminding citizens of their core rights. In
enumerating rights, drafters could also alter the legal content of fundamental
rights by more precisely specifying their substance and boundaries.
(For instance, a provision might merely declare that members of the community
enjoyed the freedom of the press or a right to trial by jury, but it could do
more than that by more clearly specifying a set of legal rules that shaped the
operative effect of a right.) At the same time, there might be dangers in
enumerating rights, as doing so might create the misleading impression that
those rights that happened to be enumerated were somehow more important than
those that had not been—a frequent Federalist rejoinder that Hamilton was sure
to hit.
Whatever
the case, Hamilton only proceeded to talk about why the U.S. Constitution
lacked a bill of rights once he had first established that U.S.
constitutionalism had to that point downplayed the need to legally enshrine
rights protections in written constitutions. Anti-Federalists had been claiming
that Federalists were pulling a fast one, so Hamilton was eager to point out
how Anti-Federalists were actually the ones who were innovating, and in ways
that cast doubt on many of the state constitutions they otherwise celebrated.
More than
this, Hamilton, like other Federalists before him, was underscoring how in fact
the people retained their fundamental rights under all republican
governments—be it state or national. People did not retain their rights by
ensuring that they were enumerated in a written constitution. Madison was not
alone in calling such text-based liberty
protections “parchment barriers.” People most effectively retained their rights
instead through well-structured representative government, or what Primus calls
process limits. Ensuring that the government was predicated on the people’s
sovereignty and in its operations appropriately embodied and mirrored the
people was the surest method there was for preserving the people’s liberty.
Thus, even enumerated rights, which to us look like affirmative prohibitions,
or external limits, on what the government could do, were quite entwined with
process limits. That was especially true of retained natural rights (forms of
natural liberty that had been enjoyed in the hypothetical state of nature such
as the right to speak, think, or travel). Those rights were retained not by
prohibiting the government from interfering with them but by requiring that government regulations of
those rights were only ever conducted by genuinely representative institutions
and in the service of the common good. Natural rights of this stripe were
retained through republicanism—through process limits. While this was most true
of retained natural rights, it was also broadly true of other liberty
provisions as well, including fundamental common law rights that placed clearer
limits on government action (like rules against press licensing or ex post
facto laws). Those rights were often declared in broad terms as well, leaving
it to the people themselves and the institutions that best represented them
(not just legislatures but also especially juries) to more precisely map the
contours and boundaries of those rights. That is what Hamilton was getting at
in Federalist 84 when he wrote that, “whatever fine
declarations may be inserted in any constitution…[liberty] must altogether
depend on public opinion, and on the general spirit of the people and of the
government.” That was “the only solid basis of all our rights.” Broadly
speaking, to the Founding generation, external limits were interlaced with
process limits.
This is also
what Hamilton was gesturing toward in that same essay when he argued that the
Constitution itself was a bill of rights. His point was in part that the people
were the Constitution’s ultimate source of sovereignty and thus enjoyed the
power to make and remake their constitutional order. Which is why he claimed
that the Preamble specifically was “a better recognition of popular rights”
than could be found anywhere. Wilson had advanced a similar argument even more emphatically in the
Pennsylvania ratifying convention, asserting that the “single sentence in the
Preamble is tantamount to a volume and contains the essence of all the bills of
rights that have been or can be devised.” But the Constitution was also,
Hamilton went on, “in every rational sense, and to every useful purpose, A BILL
OF RIGHTS” because it protected liberty through a well-structured,
representative system of federal governance.
Ironically,
despite clamoring for a federal bill of rights, Anti-Federalists strongly
agreed with Hamilton’s point that liberty was best protected through structure
not text—context that is often missed. The primary problem with the proposed
Constitution was that it was poised to establish an unrepresentative, distant
federal government that would be unresponsive to the people. The best way to
address this problem was by amending the structure of the federal system, by
making the federal government more representative and reserving more power to
the state governments. It was only because the Constitution promised to
establish an unrepresentative government that Anti-Federalists emphasized the
auxiliary value of enumerating certain fundamental rights. But throughout, they
most coveted structural amendments over rights provisions (and were
disappointed with the eventual amendments added to the Constitution precisely
because they failed to amend the government’s structural defects). It was because
Anti-Federalists agreed with Hamilton and other Federalists that liberty was
best protected through structure that they so cherished the state constitutions
and were relatively unconcerned that several of those constitutions lacked
declarations of rights. Only in a particular context, therefore, were
Anti-Federalists worried about internal or external limits. They too believed,
at bottom, that process limits were the essence of republican liberty.
All of
which is to say that rather than just paying lip service to an unsatisfying
argument, Hamilton was also using the omission of a bill of rights to reinforce
a view of constitutional limits broadly in line with Primus’s own. Hamilton,
like Federalists before him, assuredly emphasized internal limits. But when
placed in a broader context, both his arguments in Federalist 84 and the
Anti-Federalist objections to which he was responding take on additional
meaning. We now treat textually enumerated rights provisions more clearly as external
limits. That is one of the many ways in which our constitutionalism differs
from the Founders’. But as Primus stresses throughout, we still rely
significantly on process limits, and for many of the reasons that the Founding
generation did.
Nonetheless,
things have changed since the Founding. The paradigm
and premises on which Wilson, Hamilton, and others depended have, to a great
extent, disappeared or changed beyond recognition. Constitutionalists no longer
reason by way of social compact theory, treat fundamental law as the fusion of
non-positivist and positivist sources, or assume delegated federal authority as
entwined with the origins of union. On the other side of realist and positivist
revolutions in legal thinking, intuitions have changed. That does not mean that
Founding-era arguments that cast doubt on enumerationism are no longer tenable,
but they are unmoored from the constitutional culture that once breathed life
into them. That helps explain one of the crucial shifts that Primus charts in
the second half of his book, where he considers the development of
constitutional doctrine and argument since the early decades of the republic.
Where many assume that U.S. constitutional law has simply drifted away from enumerationism,
he paints a much subtler picture, persuasively arguing that from the nineteenth
to the twentieth century, constitutional law in fact shifted from an
orientation in which unenumerated powers were recognized but, in part because
the federal government lacked broad capacity, congressional authority was
understood to fall short of enjoying comprehensive reach, to one in which
unenumerated powers were no longer readily recognized but Congress’s enumerated
powers cumulatively could potentially reach everything. (267) Primus’s
explanations for why this shift occurred are compelling. But the shift is
likely also explained by a broader shift in jurisprudential thinking. In
our modern realist and positivist world, it might be harder to assimilate unenumerated
power, whereas to earlier generations of constitutional thinkers who proceed on
different legal assumptions, those kinds of powers were more obviously grounded
in habitual understandings of fundamental law and how the sovereign people shaped
it. If that is true, that might cast additional doubt on modern efforts to
ground enumerationism in the Founding.
What is
clear is that anyone hoping to better understand the Constitution and its
delegated powers, enumerated or not, must read Primus’s important book. Whether
ultimately persuaded by its arguments, everyone needs to wrestle with them. Primus
skillfully prods at deep-seated assumptions, compelling us to see familiar
aspects of the Constitution in a fresh light. The next time the Supreme Court
insists as a matter of course that the federal government has always been
limited to its enumerated powers, hopefully more readers will habitually point
out the alternative ways of understanding federal power that have been around
since the Constitution was created. In bringing those alternatives so vividly
into view, Primus has offered more than new interpretations: he has begun to
alter the deeper intuitions on which interpretations often depend.
Jonathan
Gienapp is Associate Professor of History and Law at Stanford University. He
can be reached at jgienapp@stanford.edu.