Richard Primus (University of Michigan Law School) has posted Is the Oldest Constitutional Question Substantive or Methodological?, forthcoming in the Texas A&M Law Review, on SSRN. Here is the abstract:
My recent book The Oldest Constitutional Question: Enumeration and Federal Power is about the extent of the power of Congress. But it’s also about how constitutional interpretation actually works. Not how it ought to work, but how it works in fact. Constitutional interpretation—perhaps like law in general—is an argumentative practice. We argue both about particular propositions of law and about how constitutional interpretation should work in general. That second argument is as old as the Constitution, and it will never be settled. Hence the double meaning of the book’s title: perhaps the oldest constitutional question is not the extent of federal power but the question of how the Constitution should be interpreted. And as the history of the system suggests, it is not necessary to settle the second question in order to settle the first one. The book is written to illustrate how a complex constitutional argument might proceed if it were built with attention to a theory of what actually persuades, rather than with attention to a normative theory of what ought to persuade. Critical components of that illustration include the treatment of historical sources and the interrelationships between, and sequencing of, arguments from history, structure, and text—including the idea that despite the common refrain that constitutional interpretation begins with the text, the textual aspect of constitutional reasoning is often the last step, rather than the first, of an act of constitutional interpretation.
Wow! What a paper. Deep, fascinating, conceptually rich, and thought provoking. My highest recommendation. Download it while it’s hot!
Richard Primus’s rich paper argues that the oldest constitutional question — whether federal power is limited to enumerated grants — can be adjudicated without first settling how the Constitution ought to be interpreted. His framework is descriptive rather than prescriptive: sophisticated interpreters reason coherentistically across multiple modalities — text, doctrine, structure, and constitutional ethos — without any settled priority rule among them. His strategy for resolving the enumeration question in favor of nonenumerationism is to shift constitutional memory, making nonenumerationist textual readings more accessible by supplying accurate historical accounts of founding-era practice. The argument is elegant. It may also be self-defeating.
The self-defeating quality emerges first from within Primus’s own chosen methodology. Constitutional pluralism — the view that text, history, precedent, structure, and ethos are each legitimate and independently sufficient grounds of constitutional justification — does not favor nonenumerationism. As the Legal Theory Lexicon’s entry on constitutional pluralism makes plain, pluralism can justify both Wickard v. Filburn and United States v. Lopez, both a broad and a narrow reading of the Tenth Amendment. A judge who weights enumerated-powers precedent, pre-New Deal historical practice, and the Tenth Amendment’s text heavily can reach a coherent enumerationist equilibrium without ever arriving at the ethos-level constitutional memory that Primus’s strategy targets. That is a problem. Primus’s rhetorical approach presupposes that ethos is the load-bearing modality, but pluralism assigns no fixed priority among the modalities — and a judge who finds text or precedent sufficient need never reach ethos at all. Constitutional pluralism is as available to the committed enumerationist as to the nonenumerationist.
The second strand cuts deeper, and it touches Primus’s central thesis directly. Public Meaning Originalism (understood as a normative constitutional theory) is better positioned to settle the enumeration question in Primus’s preferred direction than pluralism is — yet it is precisely the methodology Primus declines to deploy on the ground that no prescriptive theory has achieved stable compliance from actual decisionmakers. John Mikhail’s “The Necessary and Proper Clauses,” 102 Georgetown Law Journal 1045 (2014), develops a powerful originalist argument that the so-called Necessary and Proper “Clause” is in fact three distinct provisions, the second of which — authorizing Congress to carry into execution “all other Powers vested by this Constitution in the Government of the United States” — presupposes the existence of implied and unenumerated national powers. To treat this second clause as surplusage violates the elementary canon that every provision is to be given independent effect; and the drafting history confirms that James Wilson designed the provision to incorporate the doctrine of implied powers that the nationalist faction had defended throughout the preceding decade. If Mikhail’s argument succeeds — and it is a serious argument, even if contested — enumerationism is not merely outweighed across the pluralist modalities but is inconsistent with the original public meaning of the constitutional text itself. That conclusion removes the enumeration question from the construction zone and resolves it at the interpretation stage. The irony is direct: the strongest available argument for Primus’s preferred substantive conclusion is an originalist argument he does not make, grounded in a normative constitutional theory he regards as irresolvably contested. More fundamentally, the analysis suggests that Primus’s central thesis may be mistaken. The choice of methodology does not leave the substantive question open — it determines it. Pluralism yields indeterminacy on the enumeration question; public meaning originalism, on Mikhail’s reading, yields nonenumerationism. Method and substance are more tightly coupled than Primus’s paper acknowledges.
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