The Oldest Constitutional Question

In this episode, Richard Primus of the University of Michigan Law School and John Harrison of the University of Virginia School of Law join to discuss Primus’s new book The Oldest Constitutional Question: Enumeration and Federal Power, which challenges the prevailing understanding of congressional power and argues that Congress is not limited to its textually enumerated powers. Their conversation traces how this fundamental disagreement has shaped key moments in American constitutional history, from the Founding Era to the New Deal, and why the debate remains unsettled today. 

Resources

• Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (2025) 
• Richard Primus, “’The Essential Characteristic’: Enumerated Powers and the Bank of the United States,” Michigan Law Review (2018) 
• John Harrison, “Enumerated Federal Power and the Necessary and Proper Clause (reviewingThe Origins of the Necessary and Proper Clause by Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, Guy I. Seidman),” The University of Chicago Law Review (2011) 
• McCulloch v. Maryland (1819) 

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