In this tour de force of constitutional scholarship, David S. Schwartz and Andrew Coan upend the deeply rooted myth of limited enumerated powers. Standard doctrine holds that the powers of Congress are limited to those enumerated in the Constitution, with all others reserved exclusively to the states. Today, this doctrine of "enumerationism" poses a looming threat to all manner of environmental, civil-rights, and social welfare legislation. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original meaning of the Constitution. Enumerationism challenges this apparent consensus.
Blending originalist methodology with extensive textual and historical analysis, Schwartz and Coan show that enumerationism was not baked into the text of the Constitution or established by historical practice after ratification. Both the Constitution's text and history are equally, if not more, consistent with nationalism^-^the idea that Congress is empowered to address all national problems. On this view, the list of enumerated powers is illustrative, not exhaustive. In a strikingly original developmental account, Schwartz and Coan show that the rhetoric of limited enumerated powers has always had more bark than bite. For most of U.S. constitutional history, both Congress and the Supreme Court have recognized that national problems require national solutions.
This pragmatic approach was openly embraced in the first decade after ratification and persisted even in eras widely understood as enumerationist: the ascendency of the Jeffersonian Republicans, the Taney Court, and the Lochner era. Historical practice, judicial precedent, and structural and prudential reasoning all support the sweeping and unenumerated powers that the federal government has exercised from its earliest days. These are the methods that modern originalism uses to resolve ambiguities in the "construction zone." They also provide a compelling argument for renouncing enumerationism under any mainstream approach to constitutional interpretation. This analysis highlights an age-old truth. The founders could not settle their own interpretive controversies. We cannot, and should not, expect them to settle ours.
