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Enumerationism: The Myth of Limited Enumerated Powers

Autor David S. Schwartz, Andrew Coan
en Limba Engleză Hardback – mai 2027
In this tour de force of constitutional scholarship, David S. Schwartz and Andrew Coan upend the deeply rooted myth of limited enumerated powers.Standard doctrine holds that the powers of Congress are limited to those enumerated in the Constitution, with all others reserved exclusively to the states. Today, this doctrine of "enumerationism" poses a looming threat to all manner of environmental, civil-rights, and social welfare legislation. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original meaning of the Constitution. Enumerationism challenges this apparent consensus. Blending originalist methodology with extensive textual and historical analysis, Schwartz and Coan show that enumerationism was not baked into the text of the Constitution or established by historical practice after ratification. Both the Constitution's text and history are equally, if not more, consistent with nationalism^—^the idea that Congress is empowered to address all national problems. On this view, the list of enumerated powers is illustrative, not exhaustive.In a strikingly original developmental account, Schwartz and Coan show that the rhetoric of limited enumerated powers has always had more bark than bite. For most of U.S. constitutional history, both Congress and the Supreme Court have recognized that national problems require national solutions. This pragmatic approach was openly embraced in the first decade after ratification and persisted even in eras widely understood as enumerationist: the ascendency of the Jeffersonian Republicans, the Taney Court, and the Lochner era. Historical practice, judicial precedent, and structural and prudential reasoning all support the sweeping and unenumerated powers that the federal government has exercised from its earliest days. These are the methods that modern originalism uses to resolve ambiguities in the "construction zone." They also provide a compelling argument for renouncing enumerationism under any mainstream approach to constitutional interpretation. This analysis highlights an age-old truth. The founders could not settle their own interpretive controversies. We cannot, and should not, expect them to settle ours.
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Specificații

ISBN-13: 9780197812419
ISBN-10: 0197812414
Pagini: 384
Dimensiuni: 156 x 235 mm
Editura: Oxford University Press
Colecția OUP USA
Locul publicării:New York, United States

Recenzii

This book is essential reading for anyone who professes to take "constitutional interpretation" seriously, beginning with the current members of the Supreme Court. Through extraordinarily meticulous analysis of all relevant legal and historical materials, the authors upend decades of conventional wisdom that serves primarily to obfuscate the realities of our constitutional order. They also have the advantage of writing clearly and accessibly, so it is a book for general readers and concerned citizens—as well as the academic community. Sanford Levinson, University of Texas Law School, co-author (with Cynthia Levinson) of Fault Lines in the Constitution
Every lawyer "knows" that the Constitution establishes a federal government of limited powers, and the Supreme Court treats the principle as obvious. Using careful historical analysis and employing the approach to originalism developed by the most sophisticated originalist thinkers, Enumerationism: The Myth of Limited Enumerated Powers brilliantly and convincingly explodes the conventional wisdom, altering our understanding of an issue of fundamental importance. Lawyers—and courts—should never again assume that there are pressing national issues that the Constitution puts beyond Congress' reach. This is an important book and a tour de force. William Michael Treanor, Williams Professor of Law and Dean Emeritus, Georgetown University Law Center
This marvelous book is essential reading for constitutional lawyers and historians. Melding history and legal theory, Schwartz and Coan thoughtfully shred enumerationism. They persuasively explain the Convention's strategic ambiguity favoring nationalism and show the long counter-embrace of pseudo enumerationism. A valuable, thought-provoking read. Mary Sarah Bilder, Founders Professor of Law, Boston College
In a sweeping developmental narrative of American constitutional history, Schwartz and Coan take direct aim at one of the most entrenched beliefs about the U.S. Constitution—that it establishes a federal government strictly limited to its enumerated powers. Instead they offer a meticulously researched argument that the Constitution was designed to empower a national government capable of solving genuinely national problems. Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
One major barrier to adopting originalism is the supposed disruption that would result from holding Congress to its enumerated powers, as the Constitution's original meaning seems to require. If Schwartz and Coan are right, however, adopting originalism would be super easy. Barely an inconvenience. If true, that would be huge. Their careful, even-handed, but counterintuitive case against enumerationism merits serious consideration. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center, and author of A Life for Liberty: The Making of an American Originalist

Notă biografică

David S. Schwartz is Professor of Law, Emeritus at the University of Wisconsin Law School, and Editor-in-Chief and Founding Editor of the Journal of American Constitutional History. Until July 2026, he was Frederick W. and Vi Miller Professor of Law, and Vilas Distinguished Achievement Professor.Andrew Coan is Milton O. Riepe Chair in Constitutional Law at the University of Arizona's James E. Rogers College of Law. He also directs the William H. Rehnquist Center for the Constitutional Structures of Government. He has previously taught at the Wisconsin, Michigan, and Stanford Law Schools.