The limits of enumeration

Yale Law Journal

Volumn 124, Issue 3, 2014, Pages 576-642

  Primus, Richard ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84919359776     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (250)

1. 22 U.S. (9 Wheat.) 1, 195 (1824).
2. See, e.g., Laurence H. Tribe, American Constitutional Law 297 (2d ed. 1988).
3. U.S. Const. art. I, § 8, cl. 17.
4. The content of particular external limits is thus not determined by the answers to questions like, "Does this legislation constitute governance of the District of Columbia?", "Does this legislation regulate interstate commerce?", or "Does this legislation define or punish piracy?" Instead, external limits are analyzed with questions like, "Does this legislation abridge the freedom of speech?" or "Is this law a bill of attainder?"
5. See, e.g., Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321 (2001).
6. See, e.g., Pamela S. Karlan, The Supreme Court, 2011 Term-Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 42-43 (2012) (surveying this suspicion between the 1940s and the 1990s).
7. Gil Seinfeld, Article I, Article III, and the Limits of Enumeration, 108 Mich. L. Rev. 1389, 1391 (2010) (identifying the idea that internal limits lack practical force as "the standard story").
8. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 318 (rev. ed. 2014) (describing near-plenary congressional power as the practical consequence of prevailing doctrine).
9. Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 3 n.9 (2013) (collecting many expressions of this view).
10. See, e.g., Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987) (insisting on the continued validity of the principle).
11. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554 (1995) (taking the idea of a limiting enumeration as a longstanding principle worthy of continued respect).
12. See, e.g., Oral Argument at 4:52.
13. United States v. Lopez, 514 U.S. 549 (1995) (No. 93-1260) ("If… Congress can reach under the interstate commerce power, what would be an example of a case which you couldn't reach?"), http://www.oyez.org/api/media/sites/default/files /audio/cases/1994/93-1260_19941108-argument.mp3 [http://perma.cc/J7YM-V5GJ].
14. 132 S. Ct. 2566 (2012).
15. Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (2010) [hereinafter ACA] (codified as amended in scattered sections of 42 U.S.C.)
16. Jeffrey Toobin, The Oath 272-82 (2012) (describing the role of the internal-limits canon in the struggle over the ACA).
17. See, e.g., Pamela S. Karlan, The Supreme Court, 2011 Term-Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 42-43 (2012) (surveying this suspicion between the 1940s and the 1990s).
18. Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 3 n.9 (2013) (collecting many expressions of this view).
19. Wickard v. Filburn, 317 U.S. 111 (1942), is now a contestable case.
20. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824) ("The enumeration presupposes something not enumerated.").
21. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554 (1995) (taking the idea of a limiting enumeration as a longstanding principle worthy of continued respect).
22. See Gibbons, 22 U.S. at 196.
23. Eighteen is the number of power-conferring clauses in Article I, Section 8. It is worth remembering, though, that the Constitution confers power on Congress in many places other than that section. For example, the power to decide the manner of elections for the House of Representatives is conferred in Article I, Section 4, and the power to make rules respecting the property and territory of the United States is specified in Article IV, Section 3. Counting conservatively, the original Constitution contains eleven clauses granting power to Congress outside the enumeration in Article I, Section 8; the amended Constitution contains twentyfive. So although it may make sense to regard the powers affirmatively delegated by the Constitution as exclusive, it is not straightforward to think of the list in Section 8 as indicating that exclusivity. (The Tenth Amendment is a better choice as support for that proposition.)
24. See, e.g., United States v. Lopez, 514 U.S. 549, 585-89 (1995) (Thomas, J., concurring) (arguing that affording Congress the equivalent of plenary power would make nonsense of Article I, Section 8).
25. New York v. United States, 505 U.S. 144 (1992) (describing the Tenth Amendment as indicating that the enumerated powers of Congress are inherently limited).
26. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554 (1995) (taking the idea of a limiting enumeration as a longstanding principle worthy of continued respect).
27. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2577-78 (2012) (invoking this Founding attitude).
28. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 318 (rev. ed. 2014) (describing near-plenary congressional power as the practical consequence of prevailing doctrine).
29. See, e.g., NFIB, 132 S. Ct. at 2578 (describing the enumeration as limiting the scope of federal power to something narrower than state power, thus promoting the benefits of federalism).
30. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
31. U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion….").
32. U.S. Const. art. III, § 2 ("The Trial of all Crimes… shall be by Jury.").
33. See New York v. United States, 505 U.S. 144 (1992).
34. U.S. Const. art. IV, § 3.
35. Note that "affirmative" here does not mean "affirmatively specified in the text." It means affirmative in the same sense as "affirmative defenses" elsewhere in the law. An external limit, like an affirmative defense, operates in the presence of a prima facie reason for going the other way. That is, even where some enumerated power of Congress would otherwise authorize federal legislation, an external limit blocks the exercise of that power, just as an affirmative defense blocks a plaintiff or a prosecutor from making out an otherwise successful legal case. Many external limits are indeed specified in the text; depending on how capaciously one reads the text and how willingly one rejects principles that do not seem textual, the total proportion of external limits that is textually specified might be higher or lower. But the textuality vel non of a constitutional rule is orthogonal to the issue of whether it is an external limit.
36. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554 (1995) (taking the idea of a limiting enumeration as a longstanding principle worthy of continued respect).
37. I use the phrase "associated with" because the text of the Tenth Amendment, read literally, does not announce external limits. It specifies the consequences of internal ones. Nonetheless, the Amendment is often used as a placeholder for external limits.
38. See, e.g., Pamela S. Karlan, The Supreme Court, 2011 Term-Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 42-43 (2012) (surveying this suspicion between the 1940s and the 1990s).
39. 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act of 1990).
40. 529 U.S. 598 (2000) (striking down the civil remedy of the Violence Against Women Act of 1994).
41. Pub. L. No. 104-208, 110 Stat. 3009 (1996) (criminalizing the possession within a school zone of "a firearm that has moved in or that otherwise affects interstate or foreign commerce").
42. 545 U.S. 1 (2005) (upholding the application of the Controlled Substances Act based on the Commerce Clause against an individual growing marijuana for non-commercial use).
43. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 318 (rev. ed. 2014) (describing near-plenary congressional power as the practical consequence of prevailing doctrine).
44. Edward S. Corwin, The Passing of Dual Federalism, 36 Va. L. Rev. 1 (1950).
45. See, e.g., Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987) (insisting on the continued validity of the principle).
46. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
47. See, e.g., Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1192 (1996) (saying that as a practical matter the federal government now enjoys nearly plenary power but not offering interpretive arguments justifying that arrangement).
48. See, e.g., Pamela S. Karlan, The Supreme Court, 2011 Term-Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1, 42-43 (2012) (surveying this suspicion between the 1940s and the 1990s).
49. See, e.g., Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 469 (2009).
50. John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2004-05 (2009).
51. Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1513 (2007).
52. Cf. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting) ("The principle then lies about like a loaded weapon….").
53. 42 U.S.C. §§ 18001 et seq. (2012).
54. Jeffrey Toobin, The Oath 272-82 (2012) (describing the role of the internal-limits canon in the struggle over the ACA).
55. See, e.g., Barry Friedman & Genevieve Lakier, "To Regulate," Not "To Prohibit": Limiting the Commerce Power, 2012 Sup. Ct. Rev. 255 (2012) (proposing that the commerce power be construed as not conferring the power to shut down a given interstate market).
56. Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 3 n.9 (2013) (collecting many expressions of this view).
57. Some collectivist theories (Rousseau's, perhaps, or certain forms of modern socialism) may point in a different direction, but to the extent that they do, they lie outside the liberal tradition from which American constitutional thought grows. See generally Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (1955). It may also be worth noting that the recognition that limited government is conducive to individual liberty need not deny that governance is sometimes liberty-enhancing. Government and liberty are not always opponents in a zero-sum game.
58. See H.L.A. Hart, The Concept of Law 27-28 (1961) (describing laws that facilitate and extend the power of the people to whom they apply-for example, laws making it possible to enter into enforceable contracts or to dispose of property by will-rather than limiting their freedom).
59. See, e.g., U.S. Const. art. I, § 9.
60. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2577 (2012) ("If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted….").
61. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 316 (1936) (discussing implicit congressional powers in foreign affairs).
62. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 615-22 (1842) (discussing implicit congressional power to enforce the Fugitive Slave Clause).
63. See Legal Tender Cases, 79 U.S. (12 Wall.) 457, 535 (1870) ("[I]n the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted.").
64. Evan H. Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 Stan. L. Rev. 1127, 1135 (2001) (analyzing the gap between the enumerated powers and the full set of congressional powers under the Constitution).
65. Even this modification may not capture all of the Court's analyses. In Curtiss-Wright, for example, the Court opined that certain powers inherent in sovereignty or nationhood belong to the federal government even independent of the Constitution. 299 U.S. at 315-18.
66. Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) (cataloging powers that the Supreme Court has at various times recognized as belonging to Congress on the basis of general principles of national sovereignty-rather than on the basis of any particular provisions of the Constitution).
67. U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.").
68. See, e.g., M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819).
69. See Christopher G. Tiedeman, The Unwritten Constitution of the United States 137-43 (1890).
70. See Richard Primus, Unbundling Constitutionality, 80 U. Chi. L. Rev. 1079, 1098 n.45 (2013).
71. 290 U.S. 534, 544-49 (1934).
72. U.S. Const. art. I, § 8, cls. 1, 18 ("The Congress shall have Power… which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."). Note that, if the internal-limits canon is valid, it affects the Necessary and Proper Clause in the same way that it affects every other power-conferring clause, that is, by forbidding a construction so broad that the clause (whether alone or in combination with other powers) gives Congress the equivalent of a police power.
73. John Mikhail has recently argued in considerable depth that key constitutional drafters, chiefly James Wilson, intended the Necessary and Proper Clause to indicate that the Constitution delegates more powers to the federal government than it expressly enumerates. See John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014).
74. But even if modern constitutional interpretation were to be guided by Mikhail's account, nothing would necessarily follow about the internal-limits canon. Even if Congress can exercise powers other than those enumerated, it need not follow that Congress's powers are as broad in practice as a police power would be.
75. Cf. Ralph Waldo Emerson, The Problem, in American Poetry: The Nineteenth Century (John Hollander ed., 1993) ("He builded better than he knew.").
76. I do not mean to say that neither view of the enumeration/delegation issue is more hospitable to the internal-limits canon. A system's commitment to confining its legislature to a set of enumerated powers (in the literal sense) could demonstrate a stronger commitment to the idea of constraining that legislature with internal limits than might be present in a system more willing to let its legislature exercise some unenumerated powers along with its enumerated ones, in part because the internal limits on a legislature might be thought easier to identify if all of the legislature's powers were written in express terms. Conversely, accepting the view that Congress has often exercised unenumerated powers might weaken the intuition that the Constitution insists unyieldingly on a system of internal limits. It remains the case, however, that the existence of unenumerated powers need say nothing about whether the full set of powers is subject to internal limits. And indeed, the Supreme Court decisions recognizing unenumerated powers have not denied the internal-limits canon.
77. United States v. Lopez, 514 U.S. 549, 564 (1995).
78. Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2643 (2012) (Scalia, Kennedy, Thomas & Alito, JJ., dissenting).
79. NFIB, 132 S. Ct. at 2647 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting).
80. See U.S. Const. amend. I.
81. New York v. United States, 505 U.S. 144 (1992).
82. Bolling v. Sharpe, 347 U.S. 497 (1954).
83. See, e.g., Lopez, 514 U.S. 549, 564 (1995) (declaring that the government's theory in support of section 922(q) would make it "difficult to perceive any limitation on federal power").
84. This complete formulation makes reference to external limits but not process limits because external limits are the ones that make it possible to say, "Congress could not enact legislation XYZ." Process limits are in principle compatible with the enactment of any substantive legislation.
85. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819).
86. As suggested in the Introduction, the two authorizations in practice authorize the same range of conduct if it turns out that the only flavors of ice cream available at the relevant time and place are the ones in the specific authorization. And note that it might be perfectly rational for me to issue the more particular authorization even if, in the circumstances obtaining at a given time, it turned out to have the same impact as the general one. Maybe my concern is to prevent my son from eating the mint chocolate chip ice cream that I was saving for myself. Toward that end, I do not authorize him to eat the mint chocolate chip. Unbeknownst to me, though, my wife has already eaten the mint chocolate chip. (Either she did not know I was saving it or she decided, perhaps correctly, that her claim was greater than mine.) So when my son opens the freezer, he is as free to choose as if I had given a blanket authorization. The convergence between the general authorization and the particular one comes about not because I intended it to but because I lacked perfect information about the circumstances under which my son would act. And note, too, that nothing about the interest I intended to protect by giving a more limited authorization is compromised by the fact that my particularized authorization turns out not to be limiting.
87. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2577 (2012).
88. M'Culloch, 17 U.S. (4 Wheat.) at 405.
89. United States v. Comstock, 560 U.S. 126, 159 (2010) (Thomas, J., dissenting) ("In our system, the Federal Government's powers are enumerated….").
90. Carter v. Carter Coal Co., 298 U.S. 238, 291 (1936) ("[T]he powers which the general government may exercise are only those specifically enumerated in the Constitution….").
91. United States v. Butler, 297 U.S. 1, 65 (1936) ("[T]he United States is a government of limited and enumerated powers….").
92. Gibbons v. Ogden, 22 U.S. 1 (9 Wheat.), 161 (1824) ("[T]he constitution of the United States is one of delegated and enumerated powers….").
93. See Daniel Halberstam, Federalism: A Critical Guide 15-16 (Mich. Law Sch. Pub. Law & Legal Theory Working Paper Series, Working Paper No. 251, 2011), http://ssrn.com/abstract =1924939 [http://perma.cc/PPG5-HY9N].
94. See Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 389-90 (1997).
95. See Roderick M. Hills, Jr., Is Federalism Good for Localism? The Localist Case for Federal Regimes, 21 J.L. & Pol. 187 (2005).
96. The classic account is Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956).
97. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1494 (1987)
98. Raoul Berger, Federalism: The Founders' Design (1987).
99. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
100. Edward Rubin and Malcolm Feeley have famously argued that the benefits discussed here are more properly thought of as the virtues of decentralization than of federalism. In their view, real federalism sounds not in consequences for policymaking but in a deontological right to be different. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903 (1994). Much of what Rubin and Feeley say about federalism is valuable, but it is not clear on what basis they justify the choice to limit the term "federalism" to the particular usage they prefer. For what it is worth, my own sense is that "federalism" is a reasonable label for a system in which local decision makers are selected by local constituents rather than by the central government and have the authority to raise and spend revenue independently of that central government. In any event, nothing important for the present analysis turns on the choice between these two labels. Internal limits are conventionally promoted in the name of something that constitutional discourse standardly calls "federalism," and I am showing why arguments based on that thing do not supply a good reason for insisting on internal limits. If it were true that the thing here called "federalism" should be called "decentralization," nothing about my argument would need to change other than the term.
101. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554 (1995) (taking the idea of a limiting enumeration as a longstanding principle worthy of continued respect).
102. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
103. See H.L.A. Hart, The Concept of Law 27-28 (1961) (describing laws that facilitate and extend the power of the people to whom they apply-for example, laws making it possible to enter into enforceable contracts or to dispose of property by will-rather than limiting their freedom).
104. See United States v. Lopez, 514 U.S. 549, 561 (1995).
105. See 18 U.S.C. § 922(q) (2012).
106. See, e.g., United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005).
107. United States v. Danks, 221 F.3d 1037, 1039 (8th Cir. 1999).
108. See Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2591 (2012).
109. Samuel R. Bagenstos, The Anti-Leveraging Principle and the Spending Clause After NFIB, 101 Geo. L.J. 861 (2013) (formulating this holding).
110. See NFIB, 132 S. Ct. at 2603-05.
111. New York v. United States, 505 U.S. 144 (1992)
112. Printz v. United States, 521 U.S. 898 (1997)
113. NFIB, 132 S. Ct. at 2625 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part). Either such law might face challenges under the Due Process Clause, but those challenges would traffic in external rather than internal limits.
114. 529 U.S. 598 (2000).
115. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)
116. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
117. By requiring Congress to reenact the Gun-Free School Zones Act as a regulation of firearms that have moved in interstate commerce, Lopez prevented the application of the regulations at issue in cases where the firearms in question have not moved in interstate commerce. Given the interstate market in guns, that would be a small subset of all the cases that the original statute would have covered. But it is more than nothing.
118. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 546 (1935).
119. Cf. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41 (1937) (rejecting the direct-indirect distinction as a basis for limiting the commerce power).
120. Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 Sup. Ct. Rev. 125, 161.
121. See Douglas Laycock, Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights, 99 Yale L.J. 1711, 1736-37 (1990).
122. Robert F. Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (1989).
123. Edward S. Corwin, The Passing of Dual Federalism, 36 Va. L. Rev. 1 (1950).
124. See Morton Grodzins, The American System: A New View of Government in the United States 8 (Daniel J. Elazar ed., 1966).
125. See Terry Sanford, Storm Over the States 80 (1967) (imagining federal and state governments as the horizontal posts of a picket fence and federal, state, and local programs as the vertical posts connecting them).
126. See United States v. Butler, 297 U.S. 1, 68 (1936) (describing the regulation of agriculture as lying within "the reserved rights of the states").
127. See Hammer v. Dagenhart, 247 U.S. 251, 272 (1918) (reserving regulation of "the production of articles," as opposed to their interstate transportation, to states, and holding such production immune from the effect of a regulation that formally regulated interstate transportation).
128. I thank the students in Professor Gil Seinfeld's 2014 seminar on the Law of American Federalism for pushing me to clarify this point.
129. Texas v. White, 74 U.S. 700, 725 (1868) (describing an "indestructible Union, composed of indestructible states").
130. U.S. Const. art. IV, § 3.
131. Coyle v. Smith, 221 U.S. 559 (1911).
132. New York v. United States, 326 U.S. 572, 582 (1946).
133. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (holding that state sovereign immunity is limited by the enforcement provisions of the Fourteenth Amendment).
134. See New York v. United States, 505 U.S. 144 (1992).
135. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
136. For example, the Seventeenth Amendment converted the Senate from an assembly of agents of state governments into an assembly of popular representatives (though it may be more accurate to say that it mostly ratified a conversion that had already taken place in practice, because for most of the nineteenth century state legislatures tended to elect to the Senate people who had campaigned successfully for the office among the general public). See William H. Riker, The Senate and American Federalism, 49 Am. Pol. Sci. Rev. 452, 463-64 (1955).
137. See, e.g., Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256 (2009).
138. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
139. See, e.g., Catherine M. Sharkey, Inside Agency Preemption, 110 Mich. L. Rev. 521, 582 (2012) (pointing out that federal agencies are sometimes criticized for failing to consult state officials even when officially required to do so).
140. Cooperative federalism might be a species of process federalism, or it might be a separate phenomenon, or the two phenomena might overlap, depending on how one draws the boundaries of each concept. For present purposes, it is not important to decide which set of constructions is best. What matters is that the mechanisms that go by these names collectively do a great deal to ensure ongoing meaningful decision-making roles for state and local officials.
141. "Cooperative federalism" is better understood as an umbrella term naming several varying arrangements rather than a single precise model of federal-state cooperation. See Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 584-88 (2011) (describing several arrangements that could plausibly be described as versions of cooperative federalism).
142. See, e.g., Social Security Act, 42 U.S.C. §§ 301-06 (2012).
143. See, e.g., Clean Air Act, 42 U.S.C. § 7543(b), (d), (e)(2) (2012).
144. See, e.g., Patient Protection and Affordable Care Act, 42 U.S.C. §§ 18002(e)(3), 18003(a)(1) (2012).
145. See, e.g., No Child Left Behind Act of 2001, 20 U.S.C. §§ 6304, 6311 (2012).
146. See, e.g., 23 U.S.C. § 148 (2012).
147. See, e.g., Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14163 (2012).
148. See generally Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-fashioned Federalists' Gamble, 81 Fordham L. Rev. 1749 (2013) (surveying the pervasive role of state decision making and state implementation within federal statutory schemes).
149. See Gillian E. Metzger, Federalism Under Obama, 53 Wm. & Mary L. Rev. 567, 575-79 (2011).
150. See generally Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-fashioned Federalists' Gamble, 81 Fordham L. Rev. 1749 (2013) (surveying the pervasive role of state decision making and state implementation within federal statutory schemes).
151. See Status of State Action on the Medicaid Expansion Decision, Henry J. Kaiser Family Found. (Aug. 28, 2014), http://kff.org/health-reform/state-indicator/state-activity-around -expanding-medicaid-under-the-affordable-care-act [http://perma.cc/8TQY-DBWW] (listing the states that had opted to participate as of August 28, 2014, and those which had not).
152. See Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813, 868-70 (1998) (describing the practical limits on federal capacity that prevent federalization of policy areas at will).
153. See Historical Budget Data-May 2013, Cong. Budget Office (May 14, 2013), http:// www.cbo.gov/publication/44197 [http://perma.cc/CDZ7-TH5Y] (demonstrating a total of $2.899 trillion in total nondefense spending in 2011, calculated by adding mandatory outlays and net interest from Table 3, to discretionary nondefense outlays from Table 4)
154. Federal Grants to State and Local Governments, Cong. Budget Office 1, 3, 7 (Mar. 2013), http://www.cbo.gov/sites/default/files/cbofiles/attachments/43967_FederalGrants.pdf [http://perma.cc /X2XK-GDG3] (showing a total of $607 billion in federal grants to state and local governments in fiscal year 2011).
155. See, e.g., Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256 (2009).
156. See Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 Colum. L. Rev. 1, 111-12 (1990).
157. Cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1873 (2013) (describing the question of the validity of a federal agency's construction of a statute specifying state obligations within such a system as one of "faux-federalism").
158. See, e.g., United States v. Morrison, 529 U.S. 598, 617-18 (2000) ("The Constitution requires a distinction between what is truly national and what is truly local.").
159. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 580-81 (1985) (O'Connor, J., dissenting) ("The central issue of federalism, of course, is… whether any area remains in which a State may act free of federal interference.").
160. See, e.g., Nat'l Fed'n of Indep. Bus. (NFIB) v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (citing The Federalist No. 45 (James Madison)).
161. See United States v. Lopez, 514 U.S. 549, 567-68 (1995) (stating that upholding the Gun- Free School Zones Act "would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local" (citation omitted)).
162. See generally Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-fashioned Federalists' Gamble, 81 Fordham L. Rev. 1749 (2013) (surveying the pervasive role of state decision making and state implementation within federal statutory schemes).
163. In AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366 (1999).
164. See 23 U.S.C. § 148(c) (2012) (establishing eligibility criteria for federal funding for roadside lighting projects).
165. See generally Richard Primus, Constitutional Expectations, 109 Mich. L. Rev. 91 (2010) (describing the formation and power of citizens' expectations about how the constitutional system is supposed to function).
166. See, e.g., Bond v. United States, 134 S. Ct. 2077, 2088-90 (2014).
167. This is not to say that the most recent century, if taken as authoritative, would support any position on this issue univocally. Centuries rarely do that sort of thing.
168. See, e.g., Michael J. Klarman, The Founding Revisited, 125 Harv. L. Rev. 544, 560 (2011).
169. Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (2010).
170. See, e.g., James Madison, Speech at the Virginia Ratifying Convention (June 24, 1788), in 5 The Writings of James Madison 231-32 (Gaillard Hunt ed., 1904).
171. James Wilson, Speech at the Pennsylvania Ratifying Convention (Oct. 6, 1787), Pa. Packet & Daily Advertiser, Oct. 10, 1787, at 2 cols. 3-4.
172. See The Federalist No. 84 (Alexander Hamilton) (arguing against the idea that the Constitution should include a Bill of Rights).
173. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2577-78 (2012) ("Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government.") (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ("[T]he Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment."). On its face, this passage from the dissent speaks of structure in general-a category that includes process limits as well as internal ones. But in context, the reference is clearly to internal limits, because the dissent is explaining its insistence on enforcing an internal limit (on the commerce power) rather than trusting a process limit (namely democratic elections).
174. For one provocative alternative suggestion as to why the Convention's draft did not include a Bill of Rights, see William Ewald, The Committee of Detail, 28 Const. Comment. 197, 239- 40 (2012) (discussing Edmund Randolph's desire to avoid a debate about fundamental issues of political morality that might prompt heated conflict among the delegates over the issue of slavery).
175. According to Madison's journal, discussion of such structural issues dominated the Convention from the presentation of the Virginia Plan on May 29 up until July 26, when the Convention adjourned for ten days to permit the Committee of Detail to do its work, and then again from August 6 until the Convention rose on September 17, with few exceptions beyond those indicated. James Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 23-577 (Gaillard Hunt & James Brown Scott eds., 1920).
176. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
177. The Federalist No. 46 (James Madison) (articulating this perspective).
178. See generally Larry Kramer, Understanding Federalism, 47 Vand. L. Rev. 1485 (1994) (analyzing the significance of these forces to the operation of American federalism).
179. The structure of the federal government always limits its activity, both because elections limit what decision makers will do and because of the checks and balances that make formal lawmaking difficult. So to take one leading and enormously consequential example, the Founders expected that a bicameral Congress would impose more obstacles to federal lawmaking than a unicameral Congress would. See, e.g., The Federalist No. 51 (James Madison). They seem to have been right. We of course have no unicameral Congress to act as an experimental control, but much modern experience indicates that the division of Congress into two houses does act as a brake on federal legislation.
180. 2 The Records of the Federal Convention of 1787, at 181-83 (Max Farrand ed., 1911) (describing the record of August 6, 1787, and reporting Article VII of the Report of the Committee of Detail).
181. See, e.g., The Federalist No. 84 (Alexander Hamilton).
182. James Madison, Speech at the Virginia Ratifying Convention (June 24, 1788), in 5 The Writings of James Madison, at 231-32.
183. James Wilson, Speech at the Pennsylvania Ratifying Convention (Oct. 6, 1787), in 2 The Documentary History of the Ratification of the Constitution 167-68 (Merrill Jensen ed., 1976).
184. See Mark A. Graber, Enumeration and Other Constitutional Strategies for Protecting Rights: The View from 1787/1791, 9 U. Pa. J. Const. L. 357, 377-78 (2007). Note in particular that Hamilton's warning (that the specification of external limits would dangerously imply that Congress could do anything not prohibited) may have been hard to take seriously given that the proposed Constitution already did specify external limits.
185. U.S. Const. art. I, § 9 (specifying prohibitions on Congress).
186. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 1 The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776-1826, at 511-15 (James Morton Smith ed., 1995) ("To say, as Mr. Wilson does, that a bill of rights was not necessary, because all is reserved in the case of the general government which is not given… might do for the audience to which it was addressed; but it is surely a gratis dictum, the reverse of which might just as well be said[.]").
187. See, e.g., George Mason, Speech at the Virginia Ratifying Convention (June 14, 1788), in 3 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution 415-16 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Elliot's Debates].
188. See, e.g., Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 56 (2010) (describing the continuing push for a Bill of Rights).
189. The Federalist No. 84 (Alexander Hamilton) (acknowledging the central place of this objection among the various objections to ratification).
190. Unless the authority of the Founding sounds in something other than respect for the outcome of a democratic process. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765, 1770 (1997) (suggesting that much originalism actually looks to the Founders on the theory that they were our heroic ancestors, rather than on a theory of political legitimacy based on democratic processes).
191. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2676-77 (2012) (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ("Structural protections-notably, the restraints imposed by federalism and separation of powers-are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment."). The structural principle whose apparent disregard this passage was written to protest was, of course, that the enumeration of congressional powers is inherently limiting.
192. Both halves-empowerment and limitation-were important. Madison, for example, expressed at the Convention that, in defining the powers of Congress, his major worry was to give Congress enough power, rather than to prevent it from having too much. See, e.g., 1 The Records of the Federal Convention of 1787, at 356-58 (describing the record for June 21, 1787).
193. See, e.g., The Federalist No. 46, at 294-95 (James Madison) (Clinton Rossiter ed., 1961) (explaining that giving Congress only a particular set of powers would help preserve state power against federal interference by ensuring that the people would remain more attached to their state governments than to the federal government, because the only thing that could cause the people to switch loyalty would be better administration on the federal side; accordingly, "the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered").
194. James Madison, Speech at the Virginia Ratifying Convention (June 24, 1788), in 5 The Writings of James Madison, at 231-32 (explaining that enumerating the powers of Congress would be a safer way to protect essential individual rights than listing rights in the manner of external limits).
195. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 The Writings of James Madison, at 269, 271-72 (same).
196. See The Federalist No. 84, at 510-20 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (arguing that enumerating Congress's powers was the best way to secure individual rights against federal interference).
197. See, e.g., James Wilson, Speech at the Pennsylvania Ratifying Convention (Nov. 24, 1787), in 2 The Documentary History of the Ratification of the Constitution, at 350, 355 (explaining that an enumeration had been chosen as the best means of demarcating the boundary between the authority of the national government and that of the states).
198. James Wilson, Speech at the Pennsylvania Ratifying Convention (Nov. 26, 1787), in 2 Elliot's Debates, at 424-25 (explaining that the Constitution enumerates Congress's powers because such an enumeration is a good way to ensure that the federal and state governments each maintain jurisdiction over matters that should be within their respective authorities).
199. James Wilson, Speech at the Pennsylvania Ratifying Convention (Oct. 28, 1787), in 2 Elliot's Debates, at 436-37 (arguing that enumerating the powers of government is a safer means of securing individual rights than enumerating the rights of individuals because the risk of an omission in the Constitution would then fall on the government rather than on individuals).
200. See Edmund Randolph, Speech at the Virginia Ratifying Convention (June 17, 1788), in 3 Elliot's Debates, at 463 (describing the enumeration as an effective mechanism for the protection of individual liberties).
201. See James Madison's Notes from the Constitutional Convention (May 31, 1787), in 1 The Records of the Federal Convention of 1787, at 53 (saying that the powers of Congress should be enumerated so as to prevent the vagueness of a more general course from resulting in excessive extension of those powers).
202. See Roger Sherman & Oliver Ellsworth, Sherman and Ellsworth to the Governor of Connecticut (Sept. 26, 1787), in 3 The Records of the Federal Convention of 1787, at 99 (explaining that the enumeration was intended to preserve considerable autonomy for state decision making).
203. For one provocative alternative suggestion as to why the Convention's draft did not include a Bill of Rights, see William Ewald, The Committee of Detail, 28 Const. Comment. 197, 239- 40 (2012) (discussing Edmund Randolph's desire to avoid a debate about fundamental issues of political morality that might prompt heated conflict among the delegates over the issue of slavery).
204. See, e.g., Letter from Thomas Jefferson to James Madison, in 1 The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776-1826, at 513 (James Morton Smith ed., 1995) (disbelieving Wilson's public protestation that the enumeration would limit Congress's powers).
205. George Mason, Alterations Proposed (Aug. 31, 1787), in Supplement to Max Farrand's The Records of the Federal Convention of 1787, at 251 (James H. Hutson ed., 1987).
206. Edmund Randolph, Reasons for Not Signing the Constitution (Dec. 27, 1787), in 8 The Documentary History of the Ratification of the Constitution 260, 273 (John Kaminski & Gaspare Saladino eds., 1988).
207. See Christopher G. Tiedeman, The Unwritten Constitution of the United States 137-43 (1890).
208. U.S. Const. art. I, § 8, cl. 7.
209. At that point, the Post Office Clause might become either a provision without practical consequence or, depending on how things worked out, a clause that acquired uses different from those that the Founders imagined.
210. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824).
211. Again, this is not to say that it is impossible to find statements from the Founding that seem to endow the enumeration with greater significance. But at the very least, the historical record makes it hard to speak of a clear Founding commitment to treating the internal-limits approach as more than a means.
212. Nat'l Fed'n of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2589 (2012).
213. The point here is not, of course, that the Founders confronted the world as if it were entirely new, rather than being in any way influenced by or even partial to traditions of which they approved. The point is more local: the Founders did not confront Congress as an institution steeped in tradition, nor did they inherit a pre-congressional tradition of describing a national legislature (say, Parliament) as a government of enumerated powers. Modern Americans do inherit a tradition of describing Congress that way.
214. Note that Charles's strategy for Charlotte made sense at the time that he formulated it, just as the Founders' expectation that internal limits would do meaningful work as part of the overall system of limits made sense in the 1780s. Only over time did Charles's expected mechanism for ensuring Charlotte's financial security become less likely to be the way in which that end was realized. Or to make the cases more parallel, imagine this variation: Charles dies in 1894 rather than 1950, leaving a large endowment and the instruction that his female descendants in each subsequent generation should use the proceeds to attend Radcliffe. For a while, the plan probably works-when it works-mostly in the way that Charles imagined. Eventually, some of Charles's female descendants follow the instruction in a somewhat different way, and over time that different way becomes more and more the norm.
215. See generally Richard Primus, Constitutional Expectations, 109 Mich. L. Rev. 91 (2010) (describing the formation and power of citizens' expectations about how the constitutional system is supposed to function).
216. There is nothing unusual about this phenomenon: many constitutional interpretations are formed under the joint influence of several different kinds of constitutional reasoning. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1194-1209 (1987). If we have a correct understanding of the demands of federalism, for example, then it can make sense to read ambiguous text in the way that supports rather than undermines those demands. But if something in our thinking about federalism is confused, it would be a mistake to let that confusion color our interpretation of the text, lest that unnecessary reading of the text later come to seem to us (or our successors) to be evidence that the Constitution forbids us to correct our thinking about federalism.
217. U.S. Const. amend. X.
218. New York v. United States, 505 U.S. 144, 156 (1992).
219. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
220. Duncan v. Walker, 533 U.S. 167, 174 (2001).
221. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) ("It cannot be presumed that any clause in the [C]onstitution is intended to be without effect….").
222. Akhil Reed Amar, Constitutional Redundancies and Clarifying Clauses, 33 Val. U. L. Rev. 1, 2 (1998) (describing the strong tendency Amar observes among incoming law students to want to make every word in a legal document meaningful).
223. The First Amendment applies against the executive branch, and uncontroversially so, despite being textually addressed only to "Congress." See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971).
224. New York, 505 U.S. at 155-57.
225. Alden v. Maine, 527 U.S. 706, 713 (1999).
226. New York, 505 U.S. at 155-57.
227. Cf. Karl N. Llewellyn, The Constitution as an Institution, 34 Colum. L. Rev. 1, 4 (1934).
228. See, e.g., New York Times Co., 403 U.S. 713.
229. See, e.g., Seth Davis, Implied Public Rights of Action, 114 Colum. L. Rev. 1, 67 (2014) (characterizing New York as a Tenth Amendment case).
230. Jamal Greene, What the New Deal Settled, 15 U. Pa. J. Const. L. 265, 275 n.50 (2012) (linking Alden to the Tenth Amendment).
231. See, e.g., New York, 505 U.S. at 156-57 (acknowledging that the text of the Tenth Amendment does not contain the relevant rule).
232. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)
233. Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991).
234. It is also possible to advance a textual argument based on Article I, Section 1, which says, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." U.S. Const. art. I, § 1. The words "herein granted" might imply the existence of other legislative powers not granted, and that implication could draw support from the contrast with the language of the Vesting Clauses of Articles II and III, neither of which uses the "herein granted" language and which can therefore be read to indicate that the use of that language in Article I was purposeful. See U.S. Const. art. II, § 1 ("The executive power shall be vested….").
235. U.S. Const. art. III, § 1 ("The judicial power of the United States, shall be vested…."). It is hard to evaluate the strength of this interpretation as a purely textual matter. The "herein granted" language will bear the meaning described here, but that is not the only meaning it will bear, and the contrast with the other Vesting Clauses might bespeak the intention described, and it also might not. Even if read for all it might be worth, though, the Vesting Clause would demonstrate only that the Founders intended for the powers listed in Section 8 to be less than a grant of general jurisdiction, and we knew that already. The Clause does not tell us that they regarded that fact about Section 8 as having value independent of its instrumental tendency to protect state decision making and individual rights, nor does it by its terms preclude the possibility that the granted powers would turn out to reach more subjects of potential regulation than the Founders initially anticipated.
236. For one set of contrasting views on the merits of this argument, compare Kurt T. Lash, "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, 87 Notre Dame L. Rev. 2123 (2012).
237. Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 123 (2010), which supports the opposite view.
238. See, e.g., United States v. Lopez, 514 U.S. 549, 589 (1995) (Thomas, J., concurring) (making this argument).
239. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824) ("The enumeration presupposes something not enumerated.").
240. Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 Mich. L. Rev. 554 (1995) (taking the idea of a limiting enumeration as a longstanding principle worthy of continued respect).
241. As noted in Part I.A, supra, there is some question about whether Congress has only those powers that the Constitution literally enumerates or whether it also has powers that are delegated without being enumerated in the literal sense. The expressio unius argument would apply in somewhat different form depending on which perspective one adopted. If the powers of Congress are all enumerated in the literal sense, the expressio unius argument provides that the enumeration of certain powers implies the denial of all powers not enumerated. If "enumerated" is a term of art that includes powers delegated even though not expressly spelled out, the expressio unius argument provides that the enumeration of certain powers implies that not every power is given. Readers who take seriously the case law identifying some congressional powers as unenumerated will be drawn to one form, and readers who take literally the familiar axiom that the federal government is one of enumerated powers will be drawn to the other. Either way, though, the idea is that the Constitution would not separately identify the many different powers of Congress if Congress were in fact empowered to do everything that a general legislative power would enable it to do.
242. Some leading figures read the grants of congressional power as tantamount to general legislative authority. The fact that this interpretation was sometimes offered to criticize the Constitution rather than to praise it has little bearing on whether it is an interpretation that the text will support. The point is merely that the existence of Founding-era figures who read the enumeration as other than limiting is in tension with the idea that the fact of enumeration necessarily betokens limitation. To be sure, the people who read the Constitution as granting Congress something tantamount to general legislative authority may not have read the text in the best possible way. But whether they did or not, we must reckon with the fact that some participants in the process considered this reading correct.
243. See generally Richard Primus, Constitutional Expectations, 109 Mich. L. Rev. 91 (2010) (describing the formation and power of citizens' expectations about how the constitutional system is supposed to function).
244. U.S. Const. art. II, § 1.
245. I take this approach to reflect the best reading of Chief Justice Marshall's famous statement that "[i]t cannot be presumed that any clause in the Constitution is intended to be without effect[.]" Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (emphasis added). Interpreters should not presume that the drafters intended redundancy. But a presumption against intended redundancy can be overcome, and sometimes texts are in fact redundant even when not intended as such.
246. U.S. Const. art. I, § 8, cl. 6.
247. U.S. Const. art. I, § 8, cl. 1.
248. U.S. Const. art. I, § 8, cl. 8.
249. U.S. Const. art. I, § 8, cl. 18.
250. Perhaps the impulse to attribute some consequential import to every clause of the Constitution arises from the same sorts of venerative attitudes animating the idea that there is meaning to be found in every single word of the Bible, the Koran, and similar religious texts. But there are, or ought to be, obvious differences in the appropriate hermeneutic assumptions for these different enterprises. Biblical interpretation applying the principle that every word in the document is meaningful presumes an infallible author, one who does not need to negotiate clauses with Johnson and who is omniscient about the circumstances of the future as well as those of the present. Whether approaching the Constitution with parallel assumptions is merely untenable or also blasphemous is a question that different people will answer differently.