Academic journal article Harvard Journal of Law & Public Policy

A Government of Adequate Powers

Academic journal article Harvard Journal of Law & Public Policy

A Government of Adequate Powers

Article excerpt

I am about to commit an act of unmitigated blasphemy for a Federalist Society member: I am about to attack most Federalist Society members' views of federalism.

So, first let me establish my credentials: I am most liberals' nightmare constitutional conservative. I am an original public meaning textualist. I believe that the single correct method of constitutional interpretation is to attempt faithfully to apply the meaning that the words would have had, in context, to a reasonably well-informed speaker or reader of the English language at or about the time the text was adopted. I believe further that this interpretive methodology is prescribed by the Constitution, which implicitly directs textualism as the way of interpreting the Constitution when it specifies that it is "this Constitution" that is adopted. (1) This is all set out in an elaborate article that I published with Vasan Kesavan in the Georgetown Law Journal, called "The Interpretive Force of the Constitution's Secret Drafting History." (2)

There is only one correct way to interpret the Constitution, and that is original public meaning textualism. Now, here comes the blasphemy: I believe that applying that interpretive methodology faithfully, one must conclude that the powers conferred on the national government are huge, sweeping, overlapping, and, when taken together, very nearly comprehensive. Alexander Hamilton was right. And nearly every member of the Federalist Society is wrong.

The Constitution's enumeration of powers, if pushed to its logical limits, in fact provides the national government with truly sweeping powers. The fact that, for many years, those limits were never reached or even pressed does not mean that the Constitution did not, in fact, confer broad powers on the national government. The fact that, politically, the full exercise of such powers might be unpopular or constitute bad public policy does not mean that the Constitution did not, in fact, confer such broad powers. The fact that the political virtues of federalism might be eroded or altered by the full exercise of the Constitution's enumerated national legislative powers does not mean that the Constitution did not, in fact, confer such broad powers.

Federalism, properly understood, is a descriptive term attached to the Constitution's allocation of powers. It is not a freestanding constitutional rule. There is no "Federalism Clause" in the Constitution. The Constitution's allocation of powers can result in many different practical arrangements, leaning more or less in favor of national predominance or state predominance in policymaking, depending on how the national government chooses to exercise its constitutional powers.

My proposition is simply this: the enumerated powers of the national government are huge powers. Although it is undoubtedly true that "[t]he enumeration presupposes something not enumerated," (3) it is also true that the enumeration considered as a package fairly admits of a construction that permits the national government to act very nearly as if it were a government of general legislative power. The powers to tax, to spend, to regulate commerce, to wage war, to enforce prohibitions on state government actions abridging individual liberties, especially when combined with the sweeping power to enact laws that are necessary and proper for carrying those enumerated powers and any other powers of the national government into execution, create a national government of truly enormous constitutional powers.

There is very little that the federal government lacks constitutional power to do, if it employs its grants of powers carefully, properly, ingeniously, and to full effect. Aside from the exceptions the Constitution creates in favor of individual rights, the primary limitation on the exercise of federal legislative power is the logical and political plausibility of the asserted relationship between the enacted policy and the constitutional powers on which it is asserted to rest. …

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