At “The Oldest Constitutional Question” conference at Michigan Law, federal judges and constitutional scholars delved into issues of federalism, inherent powers, and separation of powers.
By Allison Torres Burtka
Michigan Law
Judges and leading constitutional scholars shared their views on the Constitution’s enumeration of congressional powers at a recent conference at the Law School that centered on Professor Richard Primus’s book “The Oldest Constitutional Question.”
Primus, the Theodore J. St. Antoine Collegiate Professor of Law, argues that—contrary to conventional thinking — the main purpose of enumeration is to rule in the powers that are listed, not to rule other powers out. While the conventional wisdom is that the enumeration of powers limits the federal government to those powers and means it can’t go beyond them, “The Oldest Constitutional Question: Enumeration and Federal Power” (Harvard University Press, 2025), says that limits on Congress’s power don’t come from enumeration.
“We expect scholarly work to challenge, provoke, and sometimes unsettle, but the best scholarship is ambitious and bold, yet responsible. Richard’s book models what it means to advance big ideas while treating evidence and opposing views with care,” said Neel Sukhatme, David A. Breach Dean of Law and professor of law, in his opening remarks.
At “The Oldest Constitutional Question” conference, federal judges and constitutional scholars delved into the implications of Primus’s approach as well as issues of federalism, inherent powers, and separation of powers.
Here’s a sampling of takeaways from the conference:
—————
1. Enumeration underlies debates about the separation of powers.
In “The Oldest Constitutional Question,” Primus points out that Congress’s powers were enumerated in part to specify that these powers were for Congress rather than for the president.
“The mere fact that Congress has been allocated a power in Article 1, Section 8” doesn’t have to be understood as “excluding the president altogether” from acting on his own authority in some of the same areas, said NYU Law Professor Trevor Morrison. “I think that matches up with the most attractive understanding of the constitutional separation of powers, which is to resist the idea of complete exclusivity when it comes to the authorities of Congress or the president.”
Julian Mortenson, the James G. Phillipp Professor of Law at Michigan Law, said that Primus had amassed powerful textual, structural, and historical evidence for the position that Congress has both enumerated and non-enumerated powers. Enumerationists might argue that Congress has only enumerated powers and the president has both enumerated and non-enumerated powers, which is “a typical conservative combination in terms of present-day positions on the scope of congressional power and the scope of presidential power,” Mortenson said.
This matters at a time when Congress has ceded power to the president. In the current moment, “the problem is not whether Congress can exercise more power than is in the list but whether Congress can cede all of the powers in the list to another branch or completely abdicate the powers in the list,” said Professor Farah Peterson of the University of Chicago Law School. “If the trend toward authoritarianism continues, constitutional interpretation decisions ought to take that threat into account.”
—————
2. History doesn’t answer all the questions about constitutional interpretation.
Primus looks closely at what the Constitution’s framers did and did not say about enumerating powers. However, Michigan Law’s Gil Seinfeld, the Robert A. Sullivan Professor of Law, said, “The thing that I appreciate most is the incredible care and humility that Richard brings to his engagement with the relevant historical materials. He is meticulous and cautious about what we can and cannot say with confidence on the basis of the record, about what is resolved and about what’s left open.”
As Primus unsettles notions of enumerationism, he offers a “great unmaking of the constitutional faith in enumerationist constraint…by clearing the theoretical thicket around what we may not need, that is, greater judicial fidelity to enumerationism,” said Professor Maggie Blackhawk of NYU Law. The book “leaves us, as a pathbreaking book really should, with many more questions than answers. You clear the thicket, but we see after the thicket is clear that we have so much more work to do.”
Originalists are the least likely to accept the revisionist account, and non-originalists are most likely to be persuaded, said Columbia Law School Professor Jamal Greene. But “even originalists who think Richard is likely to be wrong about whether the Constitution, originally understood, requires enumerationism should rethink their originalist accounts in support of it.”
In the book, Primus “does a very good job unsettling what we think of as the histories we know that then justify certain ways of doing constitutional interpretation in the moment, and at the same time, it’s producing a big, exciting, new idea in constitutional theory,” added Michigan Law Professor Samuel Erman, ’07.
—————
3. The book doesn’t respond directly to today’s most pressing problems, but it informs thinking about them.
Primus said that the book’s subject matter “is not the most important thing confronting American constitutional law at present. We live at a time of constitutional peril. …The conversations that this book most naturally provokes are not the most useful or direct ways of engaging the most important thing that is now happening.”
Still, panelists drew connections to current shifts in the federal government’s authority.
“We’re in the process of learning hard lessons in real time about some of the greatest risks associated with our systems of law and government,” Seinfeld said. “And when wise people learn new things, they are open to changing their minds, including about some of their most deeply held opinions—in this case, ones relating to ambiguous constitutional texts that sketch the contours of our federal system.”
Some of the judges moderating the panels signaled their interest in hearing more about this approach. “I’m willing to consider new ideas and, in opinions, to write, ‘Here’s the rule, but here’s reason to question it,’” said the Hon. Matthew Leitman of the US District Court for the Eastern District of Michigan. “There’s a whole generation of judges now that are attaching concurring opinions to majority opinions saying, ‘This is the rule, but there’s this whole other school of thought that we’re urging the Supreme Court to consider.’”
—————
4. Reconsidering enumerationism may provoke changes to how constitutional law should be taught.
Erman said the book has changed his approach to teaching. “I was that law professor who would stand up in front of the class and say there’s an ocean of state police power, and these little volcanoes of federal power show up occasionally. I pooh-poohed what I once called the necessary and proper clause as not really doing anything. I talked about enumeration as this not-very-good intentional strategy of constraining power. There’s not a word of that I’m ever going to teach the same way again,” he said.
Blackhawk asked: “How do we teach Richard’s [approach to the] Constitution in law schools that were built around a case book method that, with it, came the formalism, enumeration, and court-centered constitutionalism that seems to naturally flow from that pedagogical method?” And more pressing, she said, “How do we begin a conversation about the proper limits on unenumerated powers?”
Primus said teaching enumeration may require teaching both how the system works in practice, under the prevailing wisdom, and how to think more critically about it. The book does not set out to say definitively what enumeration does but rather to explain how people have thought about this system and explore which approaches make the most sense, he said.
—————
5. This argument is complicated—and might not work as a meme.
Yale Law School Professor Jack Balkin suggested that if Primus wanted to change the conventional wisdom—which the book considered a myth—he would need a myth of his own, “a simple, uncomplicated story that can be transmitted, meme-like, into the minds of the next generation of law students.” Some panelists responded that legal scholars shouldn’t be the ones generating memes, and it’s important not to oversimplify this complex problem.
Primus said, “I can’t tell you a story that’s too simple. That’s a violation of my role. Constitutional law is all about role.” But he acknowledged that others in this ecosystem may pick up these ideas and make them simpler. “If Lin-Manuel Miranda wants to write a rap opera meming my view of the enumeration, I will be happy to recommend my students see it.”
Balkin added, “Lawyers are embedded in networks of litigators, judges, other legal academics, and government officials.” A team effort is needed to change the conventional wisdom, and “legal intellectuals play an important role in the transformation of ideas, even if, in fact, they don’t carry everything on their backs,” he said.
Michigan Law
Judges and leading constitutional scholars shared their views on the Constitution’s enumeration of congressional powers at a recent conference at the Law School that centered on Professor Richard Primus’s book “The Oldest Constitutional Question.”
Primus, the Theodore J. St. Antoine Collegiate Professor of Law, argues that—contrary to conventional thinking — the main purpose of enumeration is to rule in the powers that are listed, not to rule other powers out. While the conventional wisdom is that the enumeration of powers limits the federal government to those powers and means it can’t go beyond them, “The Oldest Constitutional Question: Enumeration and Federal Power” (Harvard University Press, 2025), says that limits on Congress’s power don’t come from enumeration.
“We expect scholarly work to challenge, provoke, and sometimes unsettle, but the best scholarship is ambitious and bold, yet responsible. Richard’s book models what it means to advance big ideas while treating evidence and opposing views with care,” said Neel Sukhatme, David A. Breach Dean of Law and professor of law, in his opening remarks.
At “The Oldest Constitutional Question” conference, federal judges and constitutional scholars delved into the implications of Primus’s approach as well as issues of federalism, inherent powers, and separation of powers.
Here’s a sampling of takeaways from the conference:
—————
1. Enumeration underlies debates about the separation of powers.
In “The Oldest Constitutional Question,” Primus points out that Congress’s powers were enumerated in part to specify that these powers were for Congress rather than for the president.
“The mere fact that Congress has been allocated a power in Article 1, Section 8” doesn’t have to be understood as “excluding the president altogether” from acting on his own authority in some of the same areas, said NYU Law Professor Trevor Morrison. “I think that matches up with the most attractive understanding of the constitutional separation of powers, which is to resist the idea of complete exclusivity when it comes to the authorities of Congress or the president.”
Julian Mortenson, the James G. Phillipp Professor of Law at Michigan Law, said that Primus had amassed powerful textual, structural, and historical evidence for the position that Congress has both enumerated and non-enumerated powers. Enumerationists might argue that Congress has only enumerated powers and the president has both enumerated and non-enumerated powers, which is “a typical conservative combination in terms of present-day positions on the scope of congressional power and the scope of presidential power,” Mortenson said.
This matters at a time when Congress has ceded power to the president. In the current moment, “the problem is not whether Congress can exercise more power than is in the list but whether Congress can cede all of the powers in the list to another branch or completely abdicate the powers in the list,” said Professor Farah Peterson of the University of Chicago Law School. “If the trend toward authoritarianism continues, constitutional interpretation decisions ought to take that threat into account.”
—————
2. History doesn’t answer all the questions about constitutional interpretation.
Primus looks closely at what the Constitution’s framers did and did not say about enumerating powers. However, Michigan Law’s Gil Seinfeld, the Robert A. Sullivan Professor of Law, said, “The thing that I appreciate most is the incredible care and humility that Richard brings to his engagement with the relevant historical materials. He is meticulous and cautious about what we can and cannot say with confidence on the basis of the record, about what is resolved and about what’s left open.”
As Primus unsettles notions of enumerationism, he offers a “great unmaking of the constitutional faith in enumerationist constraint…by clearing the theoretical thicket around what we may not need, that is, greater judicial fidelity to enumerationism,” said Professor Maggie Blackhawk of NYU Law. The book “leaves us, as a pathbreaking book really should, with many more questions than answers. You clear the thicket, but we see after the thicket is clear that we have so much more work to do.”
Originalists are the least likely to accept the revisionist account, and non-originalists are most likely to be persuaded, said Columbia Law School Professor Jamal Greene. But “even originalists who think Richard is likely to be wrong about whether the Constitution, originally understood, requires enumerationism should rethink their originalist accounts in support of it.”
In the book, Primus “does a very good job unsettling what we think of as the histories we know that then justify certain ways of doing constitutional interpretation in the moment, and at the same time, it’s producing a big, exciting, new idea in constitutional theory,” added Michigan Law Professor Samuel Erman, ’07.
—————
3. The book doesn’t respond directly to today’s most pressing problems, but it informs thinking about them.
Primus said that the book’s subject matter “is not the most important thing confronting American constitutional law at present. We live at a time of constitutional peril. …The conversations that this book most naturally provokes are not the most useful or direct ways of engaging the most important thing that is now happening.”
Still, panelists drew connections to current shifts in the federal government’s authority.
“We’re in the process of learning hard lessons in real time about some of the greatest risks associated with our systems of law and government,” Seinfeld said. “And when wise people learn new things, they are open to changing their minds, including about some of their most deeply held opinions—in this case, ones relating to ambiguous constitutional texts that sketch the contours of our federal system.”
Some of the judges moderating the panels signaled their interest in hearing more about this approach. “I’m willing to consider new ideas and, in opinions, to write, ‘Here’s the rule, but here’s reason to question it,’” said the Hon. Matthew Leitman of the US District Court for the Eastern District of Michigan. “There’s a whole generation of judges now that are attaching concurring opinions to majority opinions saying, ‘This is the rule, but there’s this whole other school of thought that we’re urging the Supreme Court to consider.’”
—————
4. Reconsidering enumerationism may provoke changes to how constitutional law should be taught.
Erman said the book has changed his approach to teaching. “I was that law professor who would stand up in front of the class and say there’s an ocean of state police power, and these little volcanoes of federal power show up occasionally. I pooh-poohed what I once called the necessary and proper clause as not really doing anything. I talked about enumeration as this not-very-good intentional strategy of constraining power. There’s not a word of that I’m ever going to teach the same way again,” he said.
Blackhawk asked: “How do we teach Richard’s [approach to the] Constitution in law schools that were built around a case book method that, with it, came the formalism, enumeration, and court-centered constitutionalism that seems to naturally flow from that pedagogical method?” And more pressing, she said, “How do we begin a conversation about the proper limits on unenumerated powers?”
Primus said teaching enumeration may require teaching both how the system works in practice, under the prevailing wisdom, and how to think more critically about it. The book does not set out to say definitively what enumeration does but rather to explain how people have thought about this system and explore which approaches make the most sense, he said.
—————
5. This argument is complicated—and might not work as a meme.
Yale Law School Professor Jack Balkin suggested that if Primus wanted to change the conventional wisdom—which the book considered a myth—he would need a myth of his own, “a simple, uncomplicated story that can be transmitted, meme-like, into the minds of the next generation of law students.” Some panelists responded that legal scholars shouldn’t be the ones generating memes, and it’s important not to oversimplify this complex problem.
Primus said, “I can’t tell you a story that’s too simple. That’s a violation of my role. Constitutional law is all about role.” But he acknowledged that others in this ecosystem may pick up these ideas and make them simpler. “If Lin-Manuel Miranda wants to write a rap opera meming my view of the enumeration, I will be happy to recommend my students see it.”
Balkin added, “Lawyers are embedded in networks of litigators, judges, other legal academics, and government officials.” A team effort is needed to change the conventional wisdom, and “legal intellectuals play an important role in the transformation of ideas, even if, in fact, they don’t carry everything on their backs,” he said.
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