In his famous draft of the Kentucky Resolutions of 1798, Thomas Jefferson advised that “in questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Jefferson’s rhetorically powerful phrase rested on a simple assumption: that the Constitution constrained federal power. That assumption is understandable. After all, the Constitution is written, and it contains a list of powers. For generations, most Americans have followed Jefferson down this well-worn interpretive path and assumed that enumeration equals limitation.

　　It now appears, however, that we have all been profoundly mistaken. Fortunately for us, the publication of Richard Primus’s The Oldest Constitutional Question: Enumeration and Federal Power can now correct our long-standing and deeply misguided understanding of American constitutionalism. According to Primus, the Constitution and its Framers did not intend to limit federal power at all; they intended to amplify it. This revelation should at last break the intellectual shackles imposed by the antiquated notion that limited power somehow produces greater liberty. Primus’s work instead promises to equip American constitutionalism with the conceptual tools necessary to achieve all those policy goals that our hoary fixation on limited government has so cruelly obstructed.

　　Although the Framers in Philadelphia desired an empowered federal government, Americans throughout the Constitution’s history have stubbornly refused to see matters this way. Since its writing, the Constitution has suffered what Primus characterizes as persistent abuse and misinterpretation. He gives this mistreatment a name: “enumerationism.” By appending the ever-useful “-ism,” Primus signals—if not explicitly, then certainly suggestively—that enumeration is not merely an interpretive method but a full-blown ideology. Like all ideologies, enumerationism relies on a curated “set of anecdotes and images” to forge a usable past that legitimizes its principles. It advances propositions about how the constitutional world works, prescribes acceptable modes of thought and action, and attracts dedicated adherents who promote and enforce its doctrines and ignore, often with impressive indifference, contrary evidence.

　　These acolytes of enumerationism emphasize three types of limits on federal power. The first, which Primus labels “internal limits,” refers to “the limits of grants of power taken on their own terms.” Congress, for example, may legislate a fire code for the Capitol but not for the state of Michigan. Some limits, then, are intrinsic to the nature of particular powers. The second category consists of “external limits,” the familiar “thou-shalt-not” rules embodied in the Bill of Rights and supposedly in the Fourteenth Amendment. These provisions restrict what would otherwise be valid exercises of federal authority. The third category, “process limits,” focuses on the constitutional structure of how a bill becomes law and on the political realities that shape what legislation is actually possible. Power, on this account, is limited not by principle but by procedure and politics.

　　It is difficult to read Primus’s revival of the Nationalist constitutionalism as anything other than a desire that we place our confidence once again in men and women—five robed individuals, in particular.

　　To his credit, Primus does not deny the existence of these limits. In a gracious display of balance and objectivity, he concedes that even the Founders accepted some limits on federal power. But, as Primus repeatedly reminds us, some is not the same as all. And yet, mysteriously, enumerationism became the dominant method of constitutional interpretation. For centuries, its evangelists have occupied the proverbial street corners of American constitutional history, preaching its gospel in academic halls, converting the uninitiated, and recruiting proselytizers within the judiciary itself. The message has been so powerful that, as Primus confesses, enumerationism has come to be regarded as the only legitimate hermeneutic for understanding federal power.

　　Like all dominant ideas, enumerationism tolerates no heresy. It excludes competing methods of interpretation as illegitimate or incoherent. Ironically, however, apostasy is precisely what Primus accuses enumerationism of committing. For all its bluster, historical pedigree, and repeated claims to safeguard liberty, enumerationism’s adherents largely ignore an inconvenient fact: over the past century, and accelerating dramatically since the New Deal, it has failed. Today, the federal government legislates on virtually any issue it chooses. Yet even as courts and constitutional lawyers struggle to justify this reality, enumerationism compels them to contort their arguments, genuflect before its dogma, and pretend not to notice that alternative frameworks are readily available.

　　To liberate us from these false teachings, Primus first reveals what he claims is the true constitutional history of the founding era. Most of the book is devoted to this project. What he uncovers, he argues, is that the Constitution’s enumeration of powers was never intended to confine the federal government. Article I, Section 8 notably omits the word “expressly.” That omission, Primus contends, transforms the list of powers into broad categories from which the federal government could pursue an expansive range of policy objectives. Many Framers understood this—and some even celebrated it.

　　Naturally, as with most scholarly arguments for expansive federal power at the time of the founding, attention gravitates toward a familiar cast of Nationalist characters such as John Marshall. In Primus’s case, however, the real spotlight falls on the two Jameses: Madison and Wilson. Primus’s treatment of Madison draws on familiar texts—the “Vices of the Political System” memo, Federalist #37, and his 1817 Bonus Bill veto message. While Madison occasionally equivocated, Primus maintains that his commitment to an empowered federal government remained largely intact.

　　It is James Wilson, however, who emerges as the true hero of Primus’s historical narrative. Unlike Madison, who sometimes indulged in uncomfortable enumerationist rhetoric, Wilson was, apparently, the genuine article. His enthusiasm for broad national power can be traced from his early days in the Continental Congress, through his advocacy of implied powers under the Articles of Confederation, and ultimately to his unapologetic dismissal of state sovereignty in Chisholm v. Georgia (1793). For anyone seeking a Founder who fully embraced federal power, Wilson is the obvious choice. Primus devotes particular attention to his “State House” speech of October 1787. Although Wilson’s insistence that congressional authority must be derived from the “positive grant expressed in the instrument of union” might seem to flirt with enumerationism, Primus’s painstaking deconstruction insists otherwise. Laden with “perhaps,” “may,” “if,” and “plausibility,” Primus nonetheless concludes that Wilson’s remarks were “consistent with the idea that the general government would have nonenumerated power.” That contemporaries and later scholars failed to notice this argument is attributed to the regrettable fact that they were not looking for it. Thankfully, nearly 250 years later, the record has finally been set straight.

　　In the second half of the book, Primus obligingly moves from history to federalism. Enumerationists, he explains, cling to the quaint belief that local control is possible only if federal power is meaningfully limited. This “conventional wisdom,” however, “errs in thinking,” because it rests on an “illusory” and unrealistic demarcation between national and local authority. Put more plainly, enumerationists are said to be trapped in the tired us-versus-them dichotomy of dual federalism, a framework that modern constitutional sophistication has apparently rendered obsolete. The modern era, Primus assures us, has revealed the superior truth of cooperative federalism. Under this enlightened arrangement, local governments are free to address their particular concerns, provided, of course, that such concerns never conflict with national priorities. Primus does concede that a federal system operating in perfect harmony is unattainable, but cooperative federalism nonetheless emerges as the best available alternative. In other words, local autonomy is preserved in theory, national supremacy in practice, and any remaining discomfort can be attributed to nostalgia for an earlier, less “realistic” constitutional order.

　　Commentators will undoubtedly praise The Oldest Constitutional Question as a brilliant contribution to constitutional history and jurisprudence. As the caustic tone of the previous paragraphs suggests, I am less persuaded. There is no denying that Primus offers a lawyer’s cleverness in reinterpreting familiar sources, but his work is just another tome joining a now-decades-long endeavor of dismantling limited constitutionalism and, by extension, originalism. So common and predictable are the arguments of these scholars—Primus included—that it is all getting a bit tiresome, and certainly repetitive. In their desire to be considered the most important commentator, the one everyone praises as the destroyer of originalism and enumerated powers, most of this work creeps towards the self-important.

　　This cadre of scholars can best be described as Neo-Nationalists. Like the Nationalists of the 1780s and the Federalists of the 1790s, both of whom receive reverential and sustained attention in Primus’s book and the broader literature, Neo-Nationalists maintain that the national government exercises complete sovereignty over virtually all areas of governance. They adopt as historical fact the Federalist claim that the Constitution represented an act of collective popular sovereignty, properly lodged at the national level. The states, to be sure, continue to exist in this arrangement, but largely as administrative units tasked with carrying out the will of the national government. Assertions of state sovereignty are thus dismissed as historical errors, best consigned to the dustbin of constitutional theory.

　　Primus’s effort to recast the Constitution’s enumeration of powers as little more than political pragmatism and procedural convenience does exactly what Jefferson warned against.

　　Neo-Nationalists do not deny that states may act independently; they merely insist that such action is permissible only where the national government has not yet acted or has graciously allowed the states to do so. This belief in complete national sovereignty helps explain their persistent insistence that the enumerated powers are not actual limits at all, but rather general descriptions of the types of power the federal government may exercise. Enumeration, on this account, does not constrain authority; it merely gestures toward it.

　　This interpretive posture also explains why the Neo-Nationalist historical inquiry tends to fixate to the point of near exclusivity on a familiar pantheon: pre-1790 James Madison, James Wilson, Gouverneur Morris, and Alexander Hamilton. These figures, unsurprisingly, were among the most enthusiastic advocates of an unrestrained national government and consolidated sovereignty. Anchoring modern arguments to this select group of respected and, conveniently, like-minded Founders provides the historical pedigree Neo-Nationalists require to legitimize their constitutional ambitions. It also explains why they so readily ignore, minimize, or dismiss the substantial body of Revolutionary-era resistance to centralized power, along with the later critiques advanced by Anti-Federalists, Jeffersonians, and defenders of state sovereignty such as Thomas Burke, Roger Sherman, Elbridge Gerry, Samuel Adams, George Clinton, Melancton Smith, John Dickinson, Luther Martin, post-1790 James Madison, John Taylor of Caroline, Nathaniel Macon, and John Randolph of Roanoke.

　　Had Neo-Nationalists taken the time to examine the political and constitutional history of the period in its fullness, they might be surprised to discover that the Nationalists lost—at least for a time. Many of their most aggressive positions failed to carry the day: the reduction of states to mere administrative units, the denial of state sovereignty as a historical reality, the rejection of the sovereignty of the people of the several states, and most inconveniently for Primus’s project, the widespread American understanding that the Constitution had been adopted as a document of limited and confined powers.

　　What Primus and his fellow Neo-Nationalists consistently overlook is a rather inconvenient historical reality: Americans of the founding era embraced enumerationism as the proper method for understanding federal authority precisely because they feared arbitrary power. This fear, inherited from English constitutional experience, treated any notion of unfettered authority as an existential threat to liberty. As Jefferson put the matter in 1791, with characteristic clarity, “To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” Power, no one doubted, was necessary. But it was tolerable only if hemmed in by clearly defined barriers.

　　Nor did this anxiety cease with the end of British rule. It animated Article II of the Articles of Confederation, compelled Federalists, like Wilson and Hamilton, to assure skeptical ratifiers that the new Constitution was safe precisely because it vested only confined powers, and ultimately contributed to the adoption of the familiar “thou-shalt-not” rules of the Bill of Rights. Enumerationism thus became a central pillar of Jeffersonian constitutionalism for the next century and a keystone of the American constitutional inheritance. Primus’s belief notwithstanding, enumerationism was not merely one interpretive option among many competing frameworks; it was the only approach thought capable of preventing arbitrary power while preserving liberty. Enumerationism did not win every constitutional battle, but it retained primacy for reasons that were neither accidental nor naive.

　　Seen in this light, Primus’s effort to recast the Constitution’s enumeration of powers as little more than political pragmatism and procedural convenience does exactly what Jefferson warned against. It threatens to “reduce the whole instrument to a single phrase: that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.” It is difficult, in fact, to read Primus’s revival of the Nationalist constitutionalism as anything other than a desire that we place our confidence once again in men and women—five robed individuals, in particular. For my part, I am inclined to follow Jefferson’s advice and sink that confidence “into an abyss from which there shall be no resurrection for it.”