Academic journal article The Yale Law Journal

The Limits of Enumeration

Academic journal article The Yale Law Journal

The Limits of Enumeration

Article excerpt

ARTICLE CONTENTS  INTRODUCTION  I.   TWO IDEAS      A. The Enumeration Principle      B. The Internal-Limits Canon      C. The Internal-Limits Canon as Non Sequitur  II.  STRUCTURE      A. The Limits of Internal Limits      B. Federalism Without Internal Limits      C. Attitudinal Formation and the Internal-Limits Canon  III. HISTORY      A. How Important Were Internal Limits to the Founders?      B. Enumeration as a Means  IV.  TEXT      A. The Tenth Amendment      B. Article I  CONCLUSION 

INTRODUCTION

"The enumeration presupposes something not enumerated."

--Chief Justice John Marshall, Gibbons v. Ogden (1)

The federal government is a government of limited and enumerated powers. Every law student learns this formula. And so close on its heels that it sometimes seems to be the same idea, another principle follows: there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights. For ease of reference, we can call the first idea the enumeration principle, and, for reasons to be explained just below, we can call the second idea the internal-limits canon. So long as it is properly understood, the enumeration principle is a sound tenet of American constitutional law. But the internal-limits canon is not. The purpose of this Article is to explain why the internal-limits canon, for all its familiarity and broad acceptance, is wrong.

In referring to the idea under consideration as the internal-limits canon, I draw on a useful typology that divides limits on congressional power into three kinds. (2) Internal limits are the boundaries of Congress's powers taken on their own terms. For example, the power to govern the District of Columbia (3) can be used to write a fire code for the District of Columbia, but it cannot be used to write a fire code for Delaware. This limit is "internal" to the power itself, meaning that the limit inheres in the definition of the power. External limits, in contrast, are affirmative prohibitions that prevent Congress from doing things that would otherwise be permissible exercises of its powers. Thus, the Fifteenth Amendment prevents Congress from conducting whites-only elections in the District of Columbia, despite Congress's power to govern the District. The rule against racial discrimination in voting is not conceptually part of the power to govern the District; before the adoption of the Fifteenth Amendment, Congress could use that power to conduct racially restrictive elections. The Fifteenth Amendment creates a separate constitutional rule that pushes back against the grant of power and thus limits that power "externally." (4) Finally, there are process limits, such as the bicameral legislature, the requirement of presidential presentment, and frequent democratic elections. Unlike external limits, process limits do not place particular substantive outcomes wholly out of reach. But they raise the cost of federal action, thus diminishing the likelihood that Congress will do any particular thing, especially any particular thing that might arouse substantial opposition. (5)

Process limits and external limits are consequential forces constraining modern federal governance. Internal limits are not. Indeed, for much of the twentieth century, many people suspected that internal limits had lost all practical significance. (6) Judicial doctrine constrained Congress on the basis of prohibitions like those in the Bill of Rights, but broad constructions of the Commerce Clause made it hard to identify enforceable limits on Congress short of those affirmative prohibitions. (7) At the level of principle, though, the idea that the Constitution demands a meaningful set of internal limits lived on. (8) Defenders of federal statutes have always needed to answer the question, "If Congress can do that, what can't Congress do, other than the things the Constitution specifically forbids?" (9) That question played a famously large role in National Federation of Independent Business v. …

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