The Roots of Enumerated Powers
The first piece of my research on the Bill of Rights will be coming out in Notre Dame Law Review later this year or early next year. I want to make an observation that is not in that paper but will be in my book.
We treat the principle that Congress is limited by the enumeration of its powers in Article One as a constitutional axiom, even though those powers are now read very broadly. It seems clear to me, though, that this idea first emerged in response to the Anti-Federalist attack on the Constitution for lacking a bill of rights. In other words, prior to the Constitutional Convention there was almost no discussion of using enumeration as a tool to limit federal authority. Moreover, there was almost no discussion of this during the Convention itself. Thus, it’s not clear that the Convention delegates thought that enumeration was a constraint on Congress–they probably thought that bicameralism, a presidential veto, and the way elections would be conducted were the real constraints. Their tune changed after the proposal was made.
There isn’t any punch line to this–just more of an academic point.