Divided Argument Bedrock Con Law 101
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Aug 29, 2025 In this intriguing discussion, Richard Primus, a Michigan Law professor and author of 'The Oldest Constitutional Question,' challenges the belief in the federal government's limited powers. He explores how constitutional interpretation can vary greatly and the disconnect between legal narratives and actual practices. Primus invites listeners to reconsider the implications of the Tenth Amendment, the complexities of originalism, and how historical context shapes our understanding of federal authority, emphasizing the nuanced dynamics at play in constitutional law.
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Enumerationism Is The Default Story
- The canonical Con Law claim is that Congress is a government of enumerated powers and needs an affirmative power to justify legislation.
- Richard Primus argues that this assumption is widely taught but worth reexamining.
Textual Claims For Enumeration Are Fragile
- Primus critiques textual readings used to justify enumerationism, like the Tenth Amendment's supposed text.
- He shows the Tenth Amendment speaks of delegated powers, not strictly 'enumerated' ones, allowing implicit delegations.
A Long List Doesn't Imply Exhaustion
- The presence of a long list of powers in Article I, Section 8 does not prove exclusivity because other powers clearly exist elsewhere in the Constitution.
- Thus a detailed list is consistent with non-exhaustive grants of authority.
