The Download of the Week is The Written Constitution of Enumeration by Gary Lawson. Here is the abstract:
While originalists disagree among themselves about many things, most agree that the proper object of constitutional interpretation is the written Constitution and that the Constitution enumerates the powers of federal institutions, such as Congress. These propositions, while not universally shared by originalists, are common enough to be considered originalist orthodoxy.
Both propositions have recently been the subject of book-length critiques. Jonathan Gienapp, in Against Constitutional Originalism: A Historical Critique, claims that originalists too quickly leap to the conclusion that the written Constitution is the be-all of interpretation. He argues that “written constitutionalism did not automatically dictate the model of constitutional communication upon which orthodox originalism depends. Indeed, not only were there alternatives, but hardly anyone at the Founding believed that constitutions communicated in the distinctive linguistic and textualist way that most modern originalists assume must be inherent to our Constitution.” Professor Richard Primus similarly claims that originalists (and many non-originalists) too quickly assume that the Constitution’s enumeration of powers limit rather than simply clarify the powers of Congress. He argues that enumerationism, as he terms it, is a lens rather than a fact; it “is a way of thinking about the Constitution, not something an accurate understanding of the Constitution necessarily entails.”
This essay defends, to a point, orthodox originalism against these challenges. Professors Gienapp and Primus are actually correct in many of their claims. Those claims, however, do not lead to the conclusions that they draw. Far from defeating the linguistic turn in originalist theory or the orthodox account of enumerated powers, their analyses simply highlight how those pillars of originalism need to be clarified and qualified.
Professor Gienapp amply shows that there were and are sources of law other than the Constitution, so that ascertaining the Constitution’s communicative content does not exhaust the content of law. Thoughtful originalists have known this for decades. That is no threat to originalist orthodoxy. The key is to recognize certain analytic distinctions: between constitutional meaning and constitutional application, between constitutional content and the content of fundamental law, and between disagreement and uncertainty. Once those distinctions are clarified, the interpretative primacy of the written Constitution becomes clear.
Similarly, the positive case for enumerationism of a sort, at least as a presumptive matter, is much stronger than Professor Primus credits. He is correct, however, that there are a few federal powers beyond those enumerated in the Constitution’s text. Enumerations of principal powers carry incidental powers with them, and certain powers belong to the United States by virtue of its pre-constitutional corporate status. But those powers are well defined by founding-era agency and corporate law principles and do not amount to anything resembling the powers of a general government.
In the end, a great deal turns on a broad question of epistemology that goes well beyond the narrow questions of constitutional ontology and content addressed by Professors Gienapp and Primus: How well supported must a claim be before one can call it “correct”? Professors Gienapp and Primus both emphasize that the propositions at the heart of orthodox originalism were contested, in the founding era and today. If the fact of contest is enough to create uncertainty, then the only possible answers to the relevant questions are “I don’t know.” But that amounts to holding claims to something resembling a reasonable doubt standard. Is that the right standard for claims about constitutional ontology or meaning? Without an answer to that question – and I don’t have a definitive one – it is hard to see how discussion can progress productively.
Important, highly recommended, from one of the most important constitutional theorists. Download it while it’s hot!